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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