The House Just Passed a Bill to End Mass NSA Spying. But Will It Really Change Anything?

The lower chamber approved Thursday the USA Freedom Act despite a sudden uprising from tech companies and privacy groups that say it leaves loopholes open for intelligence agencies to exploit.

National Journal
Dustin Volz
May 22, 2014, 7:05 a.m.

Nearly a year after Ed­ward Snowden’s leaks blew the lid off the Na­tion­al Se­cur­ity Agency’s sweep­ing spy­ing pro­grams, Con­gress has taken its first sig­ni­fic­ant step to halt the gov­ern­ment’s mass col­lec­tion of Amer­ic­ans’ phone re­cords.

With bi­par­tis­an sup­port, the House on Thursday passed the USA Free­dom Act, a White House-backed bill that its sup­port­ers say will end the gov­ern­ment’s in­dis­crim­in­ate bulk col­lec­tion of Amer­ic­ans’ phone re­cords. It cleared the cham­ber on a 303-121 vote.

Tech com­pan­ies and pri­vacy ad­voc­ates, however, are sound­ing the alarm about the bill, which un­der­went sub­stan­tial el­ev­enth-hour changes this week. They say it con­tains a num­ber of loop­holes and vaguely defined pro­vi­sions that the gov­ern­ment could use to main­tain its cur­rent spy powers. The meas­ure will now move to the Sen­ate for re­view, where power­ful law­makers have also noted con­cerns about the House’s ver­sion.

Un­der the le­gis­la­tion, the gov­ern­ment would no longer re­tain bulk col­lec­tion of phone metadata — the num­bers and timestamps of calls but not their ac­tu­al con­tents. In­stead, phone com­pan­ies will keep those re­cords and be re­quired to hand them over to the NSA and oth­er in­tel­li­gence agen­cies only after the gov­ern­ment re­ceives ap­prov­al for each data search from the For­eign In­tel­li­gence Sur­veil­lance Court, ex­cept in emer­gency cases.

The meas­ure also re­duces from three to two the num­ber of “hops,” or de­grees of sep­ar­a­tion, away from a sus­pec­ted tar­get the NSA can jump when ana­lyz­ing com­mu­nic­a­tions. The amended lan­guage, however, dropped a pro­vi­sion that would have al­lowed com­pan­ies to dis­close the level of sur­veil­lance or­ders re­ceived un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, and it co­di­fies a two-year delay for mak­ing some sur­veil­lance or­ders pub­lic.

But the new ver­sion of the bill that emerged Tues­day — the product of more than a week of back­room ne­go­ti­ations among House lead­er­ship, the White House, and the in­tel­li­gence com­munity — en­dured a thor­ough lash­ing from tech gi­ants such as Google and Face­book and a num­ber of pri­vacy watch­dogs such as the Amer­ic­an Civil Liber­ties Uni­on and the Open Tech­no­logy In­sti­tute.

Draw­ing par­tic­u­lar con­sterna­tion is the bill’s altered defin­i­tion of “spe­cif­ic se­lec­tion term,” which provides a frame­work for how in­tel­li­gence agen­cies would be re­quired to define their de­sired tar­gets when con­duct­ing a search of phone re­cords. An earli­er draft, in­clud­ing one passed two weeks ago by the Ju­di­ciary and In­tel­li­gence com­mit­tees, defined se­lect­ors as “a per­son, ac­count or en­tity.” The new bill tacks on words like “ad­dress” and “device” to the list and con­tains lan­guage that crit­ics ar­gue could be in­ter­preted loosely.

In ad­di­tion to wor­ries about phone re­cords, the Re­form Gov­ern­ment Sur­veil­lance Co­ali­tion — whose mem­bers in­clude Google, Face­book, Apple, and oth­ers — ex­pressed con­cern late Wed­nes­day that the bill could also open “an un­ac­cept­able loop­hole that could en­able the bulk col­lec­tion of In­ter­net users’ data.”

Rep. Justin Amash, one of the Free­dom Act’s ori­gin­al co­spon­sors and a vo­cal crit­ic of NSA spy­ing, an­nounced Thursday morn­ing he was vot­ing no on the meas­ure be­cause it “co­di­fied a large-scale, un­con­sti­tu­tion­al do­mest­ic spy­ing pro­gram” and vi­ol­ated the Fourth Amend­ment.

While the lan­guage would pro­hib­it a tele­phone com­pany from hand­ing over all phone re­cords to the gov­ern­ment, Amash said, it was “so weakened in be­hind-the-scenes ne­go­ti­ations over the last week that the gov­ern­ment still can or­der — without prob­able cause — a tele­phone com­pany to turn over all call re­cords for ‘area code 616’ or for ‘phone calls made east of the Mis­sis­sippi.’”

Even the bill’s au­thor, Rep. Jim Sensen­bren­ner, said, “I wish this bill did more.”

“To my col­leagues who lament changes, I agree with you,” the Wis­con­sin Re­pub­lic­an, who also au­thored the post-9/11 USA Pat­ri­ot Act, said. “To pri­vacy groups who are up­set about lost pro­vi­sions, I share your dis­ap­point­ment. The ne­go­ti­ations for this bill were in­tense, and we had to make com­prom­ises, but this bill still de­serves sup­port.”

Reps. Zoe Lof­gren and Rush Holt echoed sim­il­ar con­cerns dur­ing morn­ing de­bate, say­ing that the bill did not guar­an­tee enough pri­vacy safe­guards. They voted no, as did Reps. Anna Eshoo and Dor­is Mat­sui, both Cali­for­nia Demo­crats with ties to Sil­ic­on Val­ley. In all, 51 Re­pub­lic­ans and 70 Demo­crats op­posed the “watered-down” Free­dom Act, in­clud­ing sev­er­al mem­bers of the Ju­di­ciary Com­mit­tee that un­an­im­ously passed a less amended ver­sion earli­er this month.

The Free­dom Act was in­tro­duced by Sensen­bren­ner last Oc­to­ber and racked up more than 140 co­spon­sors. It was widely em­braced by NSA re­formers as the best op­tion from Con­gress to cur­tail the gov­ern­ment sur­veil­lance ap­par­at­us, which has un­der­gone un­pre­ced­en­ted scru­tiny in the wake of the Snowden leaks.

In Janu­ary, Pres­id­ent Obama an­nounced that his ad­min­is­tra­tion would re­form the way the NSA col­lects and stores tele­phone metadata of vir­tu­ally all Amer­ic­ans. The pres­id­ent also prom­ised fur­ther trans­par­ency meas­ures and said he wanted to re­store the na­tion’s trust in the gov­ern­ment’s in­tel­li­gence agen­cies.

But Obama also said he could not act without first get­ting a bill from Con­gress that closely re­sembled his pre­ferred changes. On Wed­nes­day, the ad­min­is­tra­tion of­fi­cially an­nounced its sup­port for the House-passed Free­dom Act.

Sen­ate Ju­di­ciary Chair­man Patrick Leahy said his pan­el will con­sider the le­gis­la­tion next month be­fore it heads to the floor. Leahy, who au­thored the Sen­ate ver­sion of the ori­gin­al Free­dom Act, ex­pressed a num­ber of con­cerns about the House-passed bill, such as a lack of re­forms re­lated to na­tion­al se­cur­ity let­ters, a strong spe­cial ad­voc­ate to work with­in the FISA Court, and ad­di­tion­al trans­par­ency meas­ures. 

“Today’s ac­tion in the House con­tin­ues the bi­par­tis­an ef­fort to re­store Amer­ic­ans’ civil liber­ties,” Leahy said in a state­ment im­me­di­ately after the vote. “But I was dis­ap­poin­ted that the le­gis­la­tion passed today does not in­clude some of the mean­ing­ful re­forms con­tained in the ori­gin­al USA Free­dom Act.”