The bipartisan bill that aims to put serious curbs on the National Security Agency’s mass collection of Americans’ communications is being hailed by Republicans and Democrats as a big breakthrough.
It’s not.
“The bottom line: This is largely faux reform and a surveillance salve,” said Thomas Drake, a former NSA senior official turned whistle-blower who’s critical of the agency’s collection programs. “To date, neither the House nor Senate attempts go far enough.”
That’s not easy to discern, thanks to an outpouring of raves for the legislation. Democrats, Republicans and traditionally skeptical watchdog groups have put their muscle behind the USA Freedom Act.
The House of Representatives is expected to vote on its version of the bill next week, the first time since news about the surveillance broke last year that major legislation supported by top congressional leaders like this has come to the floor. The Senate might take up its own version as early as this summer.
The top Republican and Democrat on the House Intelligence Committee even issued a joint statement praising the bipartisan cooperation, a rarely seen trait around Congress these days.
But peek just past all the good will and there’s serious concern that Congress has much more to do. Not only are loopholes easy to find but also the government has other ways of collecting the data.
The House bill would bar the NSA from relying on one part _ Section 215 _ of the Foreign Intelligence Surveillance Act to conduct bulk data collection.
Under the bill, the NSA would no longer be allowed to collect records of data such as phone numbers or the duration of all Americans’ calls. Phone companies would retain that data, but only for the same length of time they usually keep the material.
The Justice Department, though, could get such material in an emergency _ an important political concession, since many lawmakers were concerned that the government wouldn’t be able to react quickly if needed.
The legislation also would do nothing to restrict NSA analysts’ access to a pool of telephone data called the “corporate store,” which advocates say is the repository of millions of Americans’ calling records.
Further, collection under the so-called “215 program” represents only one part of intelligence agencies’ mission.
An unknown but significant portion of the collection of communications data occurs under Executive Order 12333, which gives intelligence agencies sweeping surveillance authority outside the United States, experts said. Under the order, the NSA or other intelligence agency cannot target an American _ even overseas _ unless the FISA court clears it.
“But when the government just scoops up vast amounts of data under Executive Order 12333, it can say it’s not targeting Americans, even though it collects a huge amount of information that may pertain to Americans as well as foreigners,” said Patrick Toomey, a staff attorney with the American Civil Liberties Union.
“FISA only addresses one piece of the collection that NSA is actually engaged in,” Toomey said. “The bill doesn’t even make an effort to try to undertake the kind of comprehensive harmonization of surveillance authorities that one would hope at this point.”
Sen. Dianne Feinstein, D-Calif., the chairwoman of the Senate Intelligence Committee, has said her committee has “never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes.”
However, Feinstein has conceded that her committee has more limited details on surveillance under Executive Order 12333 after leaks to The Washington Post by former NSA contractor Edward Snowden revealed reliance on the order, including through the collection of data from the links between Yahoo and Google data centers.
Asked about her view of the House bill, she told McClatchy she wants the White House to submit its own version.
“The House has spoken, and I think we should take it seriously and look at it,’ she said, before adding, “The devil is in these details.”
President Barack Obama welcomed the bipartisan effort last week.
“We applaud the House Judiciary and Intelligence committees for approaching this issue on a bipartisan basis,” said Caitlin Hayden, National Security Council spokeswoman. “Their bill is a very good step in that important effort, and we look forward to continuing discussions with House leadership about it and to consideration on the House floor in the near future.”
The public, however, may be in the dark about other collection activities the legislation doesn’t cover. The Wall Street Journal reported earlier this year that the CIA is “building a vast database of international money transfers that includes millions of Americans’ financial and personal data” under the 215 provision. It’s unclear whether the agency conducts other activities that the legislation wouldn’t address.
Efforts to make changes to the bill are being seriously and widely discussed. A group of 27 House members from both parties wrote to their leadership Wednesday, asking for the ability to offer amendments. No decisions have been made.
“We have witnessed a steady stream of revelations about the executive branch’s apparent violations of existing surveillance law and the Fourth Amendment,” the House members wrote. “It is now clear that executive branch officials have continuously collected extremely sensitive personal information on literally every living American.”
Rep. Adam Schiff, D-Calif., an Intelligence Committee member who isn’t among the letter writers, said he hoped to offer an amendment that would seek to “introduce a greater adversarial process in the FISA court” by establishing a panel of attorneys from which counsel could be selected to participate in cases that involved novel legal and technical issues.
“I believe the civil liberties protections can be improved,” Schiff said.
Also in the works is a possible amendment that would permit more detailed disclosure by companies that get FISA court orders and national security letters.
Congress is expected to include more protections for Americans’ data collected under FISA provision 702 as well. Senate proposals would ensure that any Americans’ communications collected under that provision, which allows intelligence agencies to gather data on foreigners outside the United States, can’t be searched unless a FISA warrant is obtained. The proposals would also mandate that the NSA limit as much as possible the collection of Americans’ communications.
“But the NSA still would engage in mass surveillance of foreigners and still inadvertently collect Americans’ communications,” said Mark Jaycox, legislative analyst with the Electronic Frontier Foundation, a nonprofit advocacy organization for digital rights and freedom.
The mood on Capitol Hill, though, is acceptance. Most lawmakers are reluctant to sharply criticize the bill, realizing that one never gets all one wants and getting even a small piece is important.
“It doesn’t go quite as far as I’d like but it’s a heck of a lot better than what we have,” said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. He hopes to consider a measure this summer.
Rep. Jan Schakowsky, D-Ill., an Intelligence Committee member, praised the House bill. “If we could improve it,” she said, “I would go back to the original bill’s provisions that would implement stronger reporting regulations and create an office of the special advocate.”
Schakowsky added, though, “ I am most concerned at this point about preventing any efforts to weaken this bipartisan compromise.”
Indeed, some are concerned that lawmakers _ seeing elections looming on the horizon _ will ultimately approve watered-down legislation.
“This could all end up as a shell game. It already has, in the past,” said Drake, the former NSA official. “Anytime these programs have been scrutinized, another authority or program becomes a back door.”