July 28, 2014
More than a year after Edward Snowden's leaks ignited a furious debate over the proper scope of government surveillance, Washington may finally be ready to fundamentally redefine the National Security Agency's broad spying powers.
Key senators have been working with the White House, tech companies, and privacy groups to rally behind a new bill that is expected to be introduced Tuesday.
Barring last-minute changes or a sudden breakdown in negotiations, the forthcoming legislation—the culmination of months of post-Snowden deal-making—likely represents the best chance yet at NSA reform in an otherwise historically gridlocked Congress. The measure is unlikely to earn a vote before August recess, but it could go straight to the floor when Congress reconvenes in September and land on the president's desk sometime this fall.
The bill, according to recent drafts that circulated late last week, would effectively end the government's ability to collect bulk metadata on Americans' phone records and usher in a series of new privacy and transparency measures designed to prevent abuses at the nation's intelligence agencies.
Championed by Senate Judiciary Committee Chairman Patrick Leahy, the new measure is a beefed-up version of the USA Freedom Act that passed the House in May. The lower chamber's offering was watered down on its way to the floor because of pressure from the White House, prompting a number of powerful tech and civil-liberties groups to drop their support.
At the time, Leahy said he was "disappointed" that the House removed "meaningful reforms" included in the original language of the Freedom Act, and he vowed to work over the summer to restore some of them.
The Vermont Democrat's efforts, for the moment, appear to have paid off. Leahy's new Freedom Act, according to multiple people who have seen recent drafts, would limit the amount of call-records data the NSA can collect by tightening the definition of what can be considered a target. The House's legislation, critics said, contained vague language that the NSA could have exploited to define entire ZIP codes or other broad selectors as an appropriate "target."
Recent drafts of Leahy's bill would require the government to be more transparent about how much data it is collecting—and what percentage of that belongs to Americans. It would also create a panel of advocates to argue privacy and civil-liberties concerns before the Foreign Intelligence Surveillance Court, which is tasked with approving the intelligence community's surveillance orders and has been criticized by reform proponents as acting like a rubber stamp on bulk data collection.
All of those changes are in addition to the baseline changes that passed the House, which would bar the government from retaining bulk U.S. phone metadata—the numbers and time stamps of calls but not their actual content. Instead, phone companies would keep those records and be required to hand them over to the NSA and other intelligence agencies only after the government earned approval for data searches from the FISA Court.
Fanfare around Leahy's bill rose over the weekend. On Monday, The New York Times editorial board wrote a gushing review of the meatier USA Freedom Act, calling it a "breakthrough against the growth of government surveillance power."
But surveillance critics aren't celebrating just yet. Many are still licking their wounds after certain provisions in the original Freedom Act were gutted in the House.
"If the bill introduced looks like drafts circulating, it will have considerable support from tech companies and public-interest groups," said Harley Geiger, senior counsel at the Center for Democracy & Technology. But Geiger quickly tempered his enthusiasm, noting, "The Senate is hard to predict."
Backing from the administration for the current proposal, however, could go a long way to minimize resistance from national security hawks such as Senate Intelligence Committee Chairwoman Dianne Feinstein, who has been an ardent defender of government surveillance since Snowden's leaks began last June.
The California Democrat, according to multiple sources, has been attempting 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.
Also unclear is where key lawmakers in the House stand. Rep. Jim Sensenbrenner, who authored the House's original Freedom Act, supports the Senate's changes, an aide said. But House Judiciary Committee Chairman Bob Goodlatte, a Virginia Republican who helped shepherd the previous Freedom Act through the lower chamber, has yet to indicate how he feels about the Senate language.
"Once the Senate acts, we will closely examine the changes made," a Judiciary aide said.
But others remain confident that if the Senate overcomes opposition from a Feinstein-led cohort of defense hawks, the measure will find little resistance in the House.
"I have not seen anything in that draft that strikes me as difficult to adapt in the House," said one House Democratic staffer close to the NSA negotiations.
Amid the politicking, surveillance critics are quick to point out that more could be done with Leahy's bill, such as requiring a warrant for "backdoor" searches of Americans' Internet data incidentally collected during foreign surveillance, an idea that passed the House last month as an amendment to the annual defense appropriations bill on a 293-123 vote. Sen. Ron Wyden has long advocated for a bill that would close the so-called backdoor loophole, but recent drafts of Leahy's compromise did not include such a provision.
And the legislation would do little to rein in the Reagan-era Executive Order 12333, which many have argued is far more powerful than either Section 215 of the USA Patriot Act or Section 702 of the Foreign Intelligence Surveillance Act, which are the focus of the Freedom Act. Last week, the Privacy and Civil Liberties Oversight Board said it would began examining 12333, which allows the NSA to collect foreign intelligence without a warrant—and "incidentally" scoop up communications data of Americans. It has been only nominally updated since its creation.
"This [Leahy] bill is a partial fix," CDT's Geiger said. "It does not fix everything, or all of the great many problems that are associated with government surveillance."
July 28, 2014