Anti-NSA Crusaders Are Getting New Friends in Congress. And That Terrifies Them.

Privacy advocates are skeptical about the sudden conversion of some national security hawks.

House Energy and Commerce Committee member Rep. Mike Rogers (R-MI) questions Health and Human Services Secretary Kathleen Sebelius about the troubled launch of the website October 30, 2013 in Washington, DC. The federal healthcare insurance exchange site has been plagued by problems since its launch on October 1. 
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Dustin Volz
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Dustin Volz
May 16, 2014, 1 a.m.

Back­ers of ma­jor gov­ern­ment-sur­veil­lance re­form were stunned last week to see their favored le­gis­la­tion quickly clear two key hurdles in Con­gress after months of in­er­tia.

But amid the sud­den flurry of le­gis­lat­ive ac­tion, pri­vacy hawks are warn­ing that the bill in its cur­rent form may con­tain any num­ber of loop­holes or vaguely defined pro­vi­sions that the Na­tion­al Se­cur­ity Agency could mis­in­ter­pret to main­tain its cur­rent spy powers — or jus­ti­fy the de­vel­op­ment of new ones.

Adding to their worry is that the meas­ure, the USA Free­dom Act, is now pub­licly sup­por­ted by some of the NSA’s most force­ful de­fend­ers — law­makers who have routinely warned that Ed­ward Snowden is a treas­on­ous spy and that his leaks have helped ter­ror­ists.

Anti-sur­veil­lance act­iv­ists point to gov­ern­ment’s ques­tion­able in­ter­pret­a­tion of words like “rel­ev­ancy” in the post-9/11 Pat­ri­ot Act as the im­petus for their cur­rent sus­pi­cions. And they say his­tory is in­struct­ive: Both the Bush and Obama ad­min­is­tra­tions de­rived much of their leg­al au­thor­ity for the NSA’s do­mest­ic phone spy­ing from a sec­tion of that bill, which its au­thors in Con­gress have said was wildly ab­used bey­ond its in­ten­ded scope.

“Where there is am­bi­gu­ity in the law, the gov­ern­ment has shown a re­mark­able ca­pa­city for in­ter­pret­ing that am­bi­gu­ity cre­at­ively,” said Har­ley Gei­ger, a seni­or coun­sel for the Cen­ter of Demo­cracy & Tech­no­logy, which along with dozens of oth­er ad­vocacy groups sent a let­ter to House lead­er­ship this week ask­ing for “cla­ri­fic­a­tions and tech­nic­al cor­rec­tions” to sev­er­al sec­tions of the bill.

A pared-down, amended ver­sion of the Free­dom Act, which would move the stor­age of phone metadata from the gov­ern­ment and in­to the hands of phone com­pan­ies, un­an­im­ously passed the House Ju­di­ciary Com­mit­tee last Wed­nes­day. That was largely ex­pec­ted, but it sur­prised nearly every­one when the House In­tel­li­gence Com­mit­tee gave its own stamp of ap­prov­al to the ex­act same bill a day later.

In do­ing so, the In­tel­li­gence pan­el made a key con­ces­sion on a pro­vi­sion it loathed: Ex­cept in emer­gency cases, the NSA is barred from search­ing phone re­cords without first earn­ing ap­prov­al from the For­eign In­tel­li­gence Sur­veil­lance Court.

The bill now awaits judg­ment on the House floor, and mul­tiple sources in both parties say a vote could come as soon as Wed­nes­day.

House In­tel­li­gence Chair­man Mike Ro­gers and Rep. Dutch Rup­pers­ber­ger, the pan­el’s top Demo­crat, were among the most full-throated de­fend­ers of the NSA in Con­gress since Snowden’s leaks first sur­faced last June. But after a num­ber of back­door com­prom­ises made with House lead­er­ship and the Ju­di­ciary Com­mit­tee — whose mem­bers have been much more crit­ic­al of the gov­ern­ment’s sweep­ing sur­veil­lance pro­gram — both Ro­gers and Rup­pers­ber­ger now say they largely sup­port the Free­dom Act.

That back­ing sug­gests the Free­dom Act could sail to an easy vic­tory, ob­serv­ers say. But it also has giv­en way to con­cern that the de­fense hawks know something about the way the in­tel­li­gence com­munity in­tends to in­ter­pret the lan­guage that oth­ers don’t.

“If the In­tel­li­gence Com­mit­tee fa­vors this bill, then there could be something we missed,” said Mark Jay­cox, a le­gis­lat­ive ana­lyst with the Elec­tron­ic Fron­ti­er Found­a­tion. “It’s something to watch out for.”

Echo­ing that point, sev­er­al trans­par­ency groups sent a sep­ar­ate let­ter this week to lead­er­ship in both cham­bers call­ing for ad­di­tion­al meas­ures that would re­quire the gov­ern­ment to be more forth­com­ing about its sur­veil­lance activ­it­ies and how it is in­ter­prets dif­fer­ent stat­utes.

“The text of whatever sur­veil­lance law Con­gress passes may be very dif­fer­ent from the ex­ec­ut­ive branch’s and the For­eign In­tel­li­gence Sur­veil­lance Court’s in­ter­pret­a­tion of that law — just as was the case with sec­tion 215 of the ori­gin­al Pat­ri­ot Act,” the let­ter reads.

It also calls for the cre­ation of a spe­cial ad­voc­ate that could par­ti­cip­ate in court de­lib­er­a­tions re­view­ing the gov­ern­ment’s re­quests for ac­cess to phone re­cords and ap­peal de­cisions deemed in­suf­fi­ciently jus­ti­fied. The cre­ation of such an ad­voc­ate was part of the ori­gin­al Free­dom Act; it is not part of the cur­rent, amended ver­sion.

“We re­cog­nize that some com­prom­ises were ne­ces­sary to move any sur­veil­lance bill to the floor,” the let­ter con­cludes. “But they in­crease the im­port­ance of restor­ing the trans­par­ency pro­vi­sions of the ori­gin­al USA Free­dom Act, to veri­fy that the NSA ac­tu­ally ends bulk col­lec­tion in­stead of find­ing new loop­holes to ex­ploit.”

The In­tel­li­gence Com­mit­tee did not re­spond to re­quests for com­ment.

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