Here’s How the Senate Plans to End NSA Mass Surveillance

Sen. Patrick Leahy on Tuesday introduced a meatier version of the USA Freedom Act that passed the House in May.

National Journal
Dustin Volz
July 29, 2014, 7:57 a.m.

A power­ful Demo­crat­ic sen­at­or in­tro­duced a new bill Tues­day that would end the Na­tion­al Se­cur­ity Agency’s bulk sur­veil­lance of Amer­ic­ans’ phone re­cords and force the gov­ern­ment to be more trans­par­ent and ac­count­able with its spy­ing or­ders.

Sen­ate Ju­di­ciary Chair­man Patrick Leahy un­veiled his hotly an­ti­cip­ated USA Free­dom Act, a meas­ure that has gained con­sid­er­able trac­tion and buzz over the past week. It is a strengthened ver­sion of a bill of the same name that passed the House in May, but only after a num­ber of changes fois­ted onto it by the ad­min­is­tra­tion and de­fense hawks promp­ted tech com­pan­ies and pri­vacy ad­voc­ates to drop their sup­port.

Leahy’s bill cur­rently boasts sup­port from the White House, tech com­pan­ies, and a lit­any of pri­vacy and civil-liber­ties groups that see it as fix­ing much of what was un­done dur­ing el­ev­enth-hour back­room ne­go­ti­ations ahead of the House vote.

“If en­acted, this bill would rep­res­ent the most sig­ni­fic­ant re­form of gov­ern­ment sur­veil­lance au­thor­it­ies since Con­gress passed the USA Pat­ri­ot Act 13 years ago,” Leahy, a Ver­mont Demo­crat, said from the Sen­ate floor Tues­day. “It’s an his­tor­ic op­por­tun­ity, [and] we would be derel­ict in our duty to this coun­try if we passed up that op­por­tun­ity.”

The tenu­ous co­ali­tion of stake­hold­ers is the product of months of post-Snowden deal-mak­ing, and Leahy’s bill is widely seen as the best chance to achieve sub­stant­ive sur­veil­lance re­form this year. But the meas­ure is likely to in­cur res­ist­ance from de­fense hawks as Leahy at­tempts to move it quickly through Con­gress some­time shortly after law­makers re­turn to Wash­ing­ton fol­low­ing the Au­gust re­cess.

How Leahy’s Free­dom Act Would Cur­tail NSA Spy­ing

Leahy’s beefed up meas­ure would ef­fect­ively end the gov­ern­ment’s abil­ity to col­lect bulk metadata — the num­bers and time stamps of calls but not their ac­tu­al con­tents — on Amer­ic­ans’ phone re­cords. Phone com­pan­ies in­stead would keep those re­cords and be re­quired to give them to the NSA and oth­er in­tel­li­gence agen­cies only after the gov­ern­ment earned ap­prov­al for data searches through the For­eign In­tel­li­gence Sur­veil­lance Court.

All of those changes were in­cluded in the House ver­sion of the Free­dom Act. Leahy’s new ver­sion, however, errs fur­ther to­ward the side of pri­vacy and trans­par­ency on a num­ber of oth­er key pro­vi­sions. It spe­cifies that the NSA can’t col­lect all data from a ser­vice pro­vider or a geo­graph­ic zone, such as a ZIP code or area code, by mak­ing it ex­pli­citly clear what qual­i­fies as a suit­able “tar­get” for a search of busi­ness re­cords.

The bill would also force the NSA to pub­licly re­port more data to the pub­lic about its sur­veil­lance, in­clud­ing what por­tion of searches con­duc­ted im­plic­ate Amer­ic­ans. And it would cre­ate a pan­el of spe­cial ad­voc­ates to ar­gue on be­half of pri­vacy rights be­fore the FISA court.

Leahy had vowed to im­ple­ment those ad­di­tion­al changes ever since the House passed its Free­dom Act. But stake­hold­ers were con­cerned the Obama ad­min­is­tra­tion wouldn’t be will­ing to budge much dur­ing ne­go­ti­ations, es­pe­cially be­cause it played a heavy hand in wa­ter­ing down the House ver­sion.

Rep. Jim Sensen­bren­ner, a Wis­con­sin Re­pub­lic­an who au­thored the ori­gin­al Free­dom Act, cheered Leahy in a state­ment for thread­ing a needle with his com­prom­ise “that strengthens the pri­vacy pro­tec­tions of the House bill while re­tain­ing sup­port from the ad­min­is­tra­tion and in­tel com­munity.”

Does the Bill Have a Chance?

Most ob­serv­ers see Leahy’s Free­dom Act as the best chance at NSA re­form in this Con­gress. The om­ni­bus le­gis­la­tion is un­likely to earn a vote be­fore the Au­gust re­cess, but it may go straight to the Sen­ate floor when Con­gress re­con­venes in Septem­ber. Stake­hold­ers are hope­ful the bill could hit the pres­id­ent’s desk some­time this fall.

But it re­mains un­clear if Leahy has the votes in a his­tor­ic­ally grid­locked Sen­ate that will have most of its at­ten­tion di­ver­ted to the midterm elec­tions when law­makers come back to Wash­ing­ton. Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein has been an in­flu­en­tial back­er of the NSA’s sur­veil­lance pro­grams, and early in­dic­a­tions are that she and oth­er de­fense hawks are less than re­cept­ive to Leahy’s new pro­pos­al.

The Cali­for­nia Demo­crat, ac­cord­ing to sev­er­al sources, wants 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.

However, Leahy has sev­er­al factors work­ing in his fa­vor. For one, the ad­min­is­tra­tion is on board with his ver­sion of the Free­dom Act, an al­li­ance that could un­der­cut protests from Fein­stein’s co­hort. And Sen. Ted Cruz is among the 13 ori­gin­al co­spon­sors, mark­ing a part­ner­ship that could shore up GOP sup­port. The Texas Re­pub­lic­an and po­ten­tial 2016 pres­id­en­tial hope­ful has been re­mark­ably quiet on NSA spy­ing be­fore en­dors­ing Leahy’s meas­ure.

Oth­er co­spon­sors in­clude Demo­crats Dick Durbin, Al Franken, Richard Blu­menth­al, Tom Ud­all, Chris­toph­er Coons, Mar­tin Hein­rich, Ed­ward Mar­key, Mazie Hirono, Amy Klobuchar, and Shel­don White­house, as well as Re­pub­lic­ans Mike Lee and Dean Heller.

Not­ably ab­sent from the lists of co­spon­sors are Sen. Ron Wyden and Mark Ud­all, both Demo­crats who have been among the most ag­gress­ive crit­ics of the gov­ern­ment’s large sur­veil­lance ap­par­at­us. In a joint state­ment is­sued after the Free­dom Act’s in­tro­duc­tion, the pair of lib­er­al sen­at­ors called Leahy’s bill a “vast im­prove­ment” over what passed the House, but said more needs to be done to lim­it so-called “back­door” searches of Amer­ic­an re­cords in­cid­ent­ally col­lec­ted dur­ing for­eign sur­veil­lance.

“While this pro­gress is en­cour­aging, this le­gis­la­tion un­for­tu­nately lacks im­port­ant pro­vi­sions that re­formers have pro­posed to end the back­door and war­rant­less searches of Amer­ic­ans’ per­son­al elec­tron­ic com­mu­nic­a­tions un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act,” Wyden and Ud­all said. “Con­gress needs to close this loop­hole, and we look for­ward to work­ing with Chair­man Leahy and our col­leagues to ad­dress this is­sue when the bill comes be­fore the full U.S. Sen­ate.”

Des­pite tur­bu­lence from both sides, Leahy’s Free­dom Act still has sig­ni­fic­ant mo­mentum be­hind it, thanks to sup­port from a di­verse ar­ray of stake­hold­ers. The lan­guage in his bill boasts en­dorse­ments from pri­vacy and civil-liber­ties groups such as the Amer­ic­an Civil Liber­ties Uni­on and Cen­ter for Demo­cracy & Tech­no­logy, as well as gen­er­al sup­port from the tech lobby.

“This bill will help re­store trust in the In­ter­net by end­ing the gov­ern­ment’s bulk In­ter­net metadata col­lec­tion and in­creas­ing trans­par­ency around U.S. sur­veil­lance prac­tices,” said Re­form Gov­ern­ment Sur­veil­lance — a co­ali­tion of tech com­pan­ies that in­cludes Google, Face­book, and Mi­crosoft — in a state­ment.

Liza Goitein, co­dir­ect­or of the Bren­nan Cen­ter’s Liberty and Na­tion­al Se­cur­ity Pro­gram, said the new Free­dom Act will “take a key step for­ward by pro­hib­it­ing bulk col­lec­tion of Amer­ic­ans’ phones, fin­an­cial, and cred­it re­cords.”

“This would be the first sig­ni­fic­ant re­stric­tion Con­gress has placed on in­tel­li­gence agen­cies’ bal­loon­ing spy ap­par­at­us since 9/11,” Goitein said.

But Goitein also soun­ded a com­mon re­frain among pri­vacy ad­voc­ates: This bill, if passed, ad­dresses only a sliv­er of the sweep­ing gov­ern­ment-sur­veil­lance pro­grams that have sur­faced since Ed­ward Snowden’s leaks began last June.

“It’s im­port­ant to re­mem­ber that the bulk col­lec­tion pro­gram is the tip of a massive ice­berg,” she ad­ded. “Un­til Con­gress ad­dresses the col­lec­tion and use of Amer­ic­ans’ calls and emails un­der au­thor­it­ies that sup­posedly tar­get for­eign­ers, the pri­vacy of all of our com­mu­nic­a­tions is at risk.”