The Senate Has a New Plot to Thwart NSA Spying

A reworked bill in the Senate being introduced this week is renewing confidence among anti-surveillance crusaders still hollering for reform.

WASHINGTON, DC - SEPTEMBER 17: Sen. Patrick Leahy (D-VT) talks to reporters after a Democratic Senate policy luncheon, on Capitol Hill, September 17, 2013 in Washington, DC. He was asked questions about gun control and yesterday's Navy Yard shooting.
National Journal
Dustin Volz
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Dustin Volz
July 28, 2014, 11 a.m.

More than a year after Ed­ward Snowden’s leaks ig­nited a furi­ous de­bate over the prop­er scope of gov­ern­ment sur­veil­lance, Wash­ing­ton may fi­nally be ready to fun­da­ment­ally re­define the Na­tion­al Se­cur­ity Agency’s broad spy­ing powers.

Key sen­at­ors have been work­ing with the White House, tech com­pan­ies, and pri­vacy groups to rally be­hind a new bill that is ex­pec­ted to be in­tro­duced Tues­day.

Bar­ring last-minute changes or a sud­den break­down in ne­go­ti­ations, the forth­com­ing le­gis­la­tion—the cul­min­a­tion of months of post-Snowden deal-mak­ing—likely rep­res­ents the best chance yet at NSA re­form in an oth­er­wise his­tor­ic­ally grid­locked Con­gress. The meas­ure is un­likely to earn a vote be­fore Au­gust re­cess, but it could go straight to the floor when Con­gress re­con­venes in Septem­ber and land on the pres­id­ent’s desk some­time this fall.

The bill, ac­cord­ing to re­cent drafts that cir­cu­lated late last week, would ef­fect­ively end the gov­ern­ment’s abil­ity to col­lect bulk metadata on Amer­ic­ans’ phone re­cords and ush­er in a series of new pri­vacy and trans­par­ency meas­ures de­signed to pre­vent ab­uses at the na­tion’s in­tel­li­gence agen­cies.

Cham­pioned by Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, the new meas­ure is a beefed-up ver­sion of the USA Free­dom Act that passed the House in May. The lower cham­ber’s of­fer­ing was watered down on its way to the floor be­cause of pres­sure from the White House, prompt­ing a num­ber of power­ful tech and civil-liber­ties groups to drop their sup­port.

At the time, Leahy said he was “dis­ap­poin­ted” that the House re­moved “mean­ing­ful re­forms” in­cluded in the ori­gin­al lan­guage of the Free­dom Act, and he vowed to work over the sum­mer to re­store some of them.

The Ver­mont Demo­crat’s ef­forts, for the mo­ment, ap­pear to have paid off. Leahy’s new Free­dom Act, ac­cord­ing to mul­tiple people who have seen re­cent drafts, would lim­it the amount of call-re­cords data the NSA can col­lect by tight­en­ing the defin­i­tion of what can be con­sidered a tar­get. The House’s le­gis­la­tion, crit­ics said, con­tained vague lan­guage that the NSA could have ex­ploited to define en­tire ZIP codes or oth­er broad se­lect­ors as an ap­pro­pri­ate “tar­get.”

Re­cent drafts of Leahy’s bill would re­quire the gov­ern­ment to be more trans­par­ent about how much data it is col­lect­ing—and what per­cent­age of that be­longs to Amer­ic­ans. It would also cre­ate a pan­el of ad­voc­ates to ar­gue pri­vacy and civil-liber­ties con­cerns be­fore the For­eign In­tel­li­gence Sur­veil­lance Court, which is tasked with ap­prov­ing the in­tel­li­gence com­munity’s sur­veil­lance or­ders and has been cri­ti­cized by re­form pro­ponents as act­ing like a rub­ber stamp on bulk data col­lec­tion.

All of those changes are in ad­di­tion to the baseline changes that passed the House, which would bar the gov­ern­ment from re­tain­ing bulk U.S. phone metadata—the num­bers and time stamps of calls but not their ac­tu­al con­tent. In­stead, phone com­pan­ies would keep those re­cords and be re­quired to hand them over to the NSA and oth­er in­tel­li­gence agen­cies only after the gov­ern­ment earned ap­prov­al for data searches from the FISA Court.

Fan­fare around Leahy’s bill rose over the week­end. On Monday, The New York Times ed­it­or­i­al board wrote a gush­ing re­view of the meat­i­er USA Free­dom Act, call­ing it a “break­through against the growth of gov­ern­ment sur­veil­lance power.”

But sur­veil­lance crit­ics aren’t cel­eb­rat­ing just yet. Many are still lick­ing their wounds after cer­tain pro­vi­sions in the ori­gin­al Free­dom Act were gut­ted in the House.

“If the bill in­tro­duced looks like drafts cir­cu­lat­ing, it will have con­sid­er­able sup­port from tech com­pan­ies and pub­lic-in­terest groups,” said Har­ley Gei­ger, seni­or coun­sel at the Cen­ter for Demo­cracy & Tech­no­logy. But Gei­ger quickly tempered his en­thu­si­asm, not­ing, “The Sen­ate is hard to pre­dict.”

Back­ing from the ad­min­is­tra­tion for the cur­rent pro­pos­al, however, could go a long way to min­im­ize res­ist­ance from na­tion­al se­cur­ity hawks such as Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, who has been an ar­dent de­fend­er of gov­ern­ment sur­veil­lance since Snowden’s leaks began last June.

The Cali­for­nia Demo­crat, ac­cord­ing to mul­tiple sources, has been at­tempt­ing to push a data-re­ten­tion man­date that would re­quire phone com­pan­ies to keep cus­tom­er data for a cer­tain amount of time that would ex­ceed cur­rent re­quire­ments set at 18 months. Mul­tiple pri­vacy ad­voc­ates said such a man­date would amount to a “pois­on pill” and would likely prompt a cas­cade of groups to drop their sup­port for the Free­dom Act.

Also un­clear is where key law­makers in the House stand. Rep. Jim Sensen­bren­ner, who au­thored the House’s ori­gin­al Free­dom Act, sup­ports the Sen­ate’s changes, an aide said. But House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte, a Vir­gin­ia Re­pub­lic­an who helped shep­herd the pre­vi­ous Free­dom Act through the lower cham­ber, has yet to in­dic­ate how he feels about the Sen­ate lan­guage.

“Once the Sen­ate acts, we will closely ex­am­ine the changes made,” a Ju­di­ciary aide said.

But oth­ers re­main con­fid­ent that if the Sen­ate over­comes op­pos­i­tion from a Fein­stein-led co­hort of de­fense hawks, the meas­ure will find little res­ist­ance in the House.

“I have not seen any­thing in that draft that strikes me as dif­fi­cult to ad­apt in the House,” said one House Demo­crat­ic staffer close to the NSA ne­go­ti­ations.

Amid the politick­ing, sur­veil­lance crit­ics are quick to point out that more could be done with Leahy’s bill, such as re­quir­ing a war­rant for “back­door” searches of Amer­ic­ans’ In­ter­net data in­cid­ent­ally col­lec­ted dur­ing for­eign sur­veil­lance, an idea that passed the House last month as an amend­ment to the an­nu­al de­fense ap­pro­pri­ations bill on a 293-123 vote. Sen. Ron Wyden has long ad­voc­ated for a bill that would close the so-called back­door loop­hole, but re­cent drafts of Leahy’s com­prom­ise did not in­clude such a pro­vi­sion.

And the le­gis­la­tion would do little to rein in the Re­agan-era Ex­ec­ut­ive Or­der 12333, which many have ar­gued is far more power­ful than either Sec­tion 215 of the USA Pat­ri­ot Act or Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, which are the fo­cus of the Free­dom Act. Last week, the Pri­vacy and Civil Liber­ties Over­sight Board said it would began ex­amin­ing 12333, which al­lows the NSA to col­lect for­eign in­tel­li­gence without a war­rant—and “in­cid­ent­ally” scoop up com­mu­nic­a­tions data of Amer­ic­ans. It has been only nom­in­ally up­dated since its cre­ation.

“This [Leahy] bill is a par­tial fix,” CDT’s Gei­ger said. “It does not fix everything, or all of the great many prob­lems that are as­so­ci­ated with gov­ern­ment sur­veil­lance.”

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