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.

The National Security Agency (NSA) headquarters at Fort Meade, Maryland, as seen from the air, January 29, 2010. 
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.

{{ BIZOBJ (video: 5130) }}

“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.”

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.”

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