Feinstein’s NSA Bill Is Officially on Life Support

A federal judge, tech groups, and even the senator say we need to take a closer look at the National Security Agency’s surveillance programs.

WASHINGTON, DC - DECEMBER 15: U.S. Sen. Dianne Feinstein (D-CA) (L) speaks with reporters after the tax compromise vote December 15, 2010 in Washington, DC.The bill passed the Senate by a vote of 81-19, moving the vote to the House of Representatives. (Photo by Mark Wilson/Getty Images)
National Journal
Dec. 18, 2013, 9:18 a.m.

More than 50 civil-liber­ties and In­ter­net-free­dom groups sent a let­ter to Con­gress on Wed­nes­day strongly re­ject­ing a bill to re­form the Na­tion­al Se­cur­ity Agency’s data-col­lec­tion pro­grams be­cause it would “en­trench some of the worst forms of NSA sur­veil­lance.”

The co­ali­tion is tar­get­ing the FISA Im­prove­ments Act, a meas­ure cham­pioned by Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, D-Cal­if., who has been among the NSA’s most vo­cal de­fend­ers since rev­el­a­tions about the agency’s In­ter­net and phone metadata col­lec­tion began sur­fa­cing in June. Her bill enu­mer­ates prop­er use for the bulk-col­lec­tion pro­grams, re­quires the NSA to provide an­nu­al re­ports on the use of its tele­phone metadata data­base, and makes it a crim­in­al pen­alty to ac­cess data pro­cured via the For­eign In­tel­li­gence Sur­veil­lance Act without au­thor­iz­a­tion.

Cri­ti­cism of Fein­stein’s bill is noth­ing new, but the let­ter fol­lows a fed­er­al judge’s opin­ion re­leased earli­er this week that char­ac­ter­ized NSA sur­veil­lance as likely un­con­sti­tu­tion­al and “al­most Or­wellian.” In re­sponse, Fein­stein con­ceded Tues­day that the Su­preme Court, not Con­gress, should de­cide the con­sti­tu­tion­al­ity of the agency’s data col­lec­tion.

Fein­stein’s bill “does not of­fer real re­form to stop the NSA’s mass col­lec­tion of our com­mu­nic­a­tions and com­mu­nic­a­tions re­cords,” reads the let­ter, whose sig­nat­or­ies in­clude Red­dit, the Amer­ic­an Civil Liber­ties Uni­on, and Hu­man Rights Watch. The bill in­stead “seeks to en­trench some of the worst forms of NSA sur­veil­lance in­to U.S. law and to ex­tend the NSA sur­veil­lance pro­grams in un­pre­ced­en­ted ways.”

Fein­stein ap­pears un­likely to stop push­ing her le­gis­la­tion, however, say­ing in a state­ment Tues­day that she be­lieves the NSA’s call-re­cords pro­gram “can be­ne­fit from ad­di­tion­al trans­par­ency and pri­vacy pro­tec­tions — in­clud­ing ad­di­tion­al pub­lic re­port­ing and ad­ded court re­view pro­vi­sions which were re­cently ad­op­ted by the Sen­ate In­tel­li­gence Com­mit­tee in the bi­par­tis­an FISA Im­prove­ments Act.”

But Fein­stein’s pub­lic de­fer­ence to the Su­preme Court, com­bined with a grow­ing sense among tech groups large and small that her bill merely co­di­fies the NSA’s ex­ist­ing au­thor­ity, in­dic­ates that any mo­mentum for the bill is, for now, hal­ted.

“The re­cent fed­er­al judge’s rul­ing that the Na­tion­al Se­cur­ity Agency’s phone-sur­veil­lance pro­gram is likely un­con­sti­tu­tion­al un­der the Fourth Amend­ment is the latest con­firm­a­tion that mass sur­veil­lance is in­com­pat­ible with a demo­crat­ic so­ci­ety,” said Joanna Parke, man­aging dir­ect­or of Thought­Works, which also signed the let­ter.

The let­ter does not ex­pressly sup­port al­tern­at­ive le­gis­la­tion pro­posed to rein in the NSA, but sev­er­al of the sig­nat­or­ies have pre­vi­ously ex­pressed sup­port for Rep. Jim Sensen­bren­ner’s Free­dom Act, which had 115 co­spon­sors as of Tues­day. Sensen­bren­ner’s bill and a mir­ror one in the Sen­ate by Ju­di­ciary Chair­man Patrick Leahy, D-Vt., would re­strict the col­lec­tion of metadata, cre­ate a spe­cial ad­voc­ate to over­see the secret For­eign In­tel­li­gence Sur­veil­lance Court, and de­mand the NSA in­crease its trans­par­ency and ac­count­ab­il­ity.

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