Since Edward Snowden leaked the first classified intelligence document in June of 2013, over a dozen bills have been proposed to rein in government surveillance. Some have taken on single issues, like requesting details about violations of privacy laws. Others are omnibus proposals meant to close as many surveillance loopholes as possible. But as of yesterday, reformers are pinning their hopes on a single bill: the USA Freedom Act, only one step away from passing the House of Representatives.
The USA Freedom Act, brought by Rep. Jim Sensenbrenner (R-WI), focuses on the most notorious government surveillance program: the NSA’s mass collection of phone call records, which it stores for up to five years. The program was justified under an extremely loose interpretation of Section 215 of the Patriot Act. Sensenbrenner’s bill would add new language that makes it harder to justify broad data sweeps, requiring that anything the NSA requested from phone companies be not only relevant to an investigation (the original standard) but directly pertain to a potential foreign threat. Its language is designed to close potential loopholes, rewriting rules — like pen register laws — in ways that would ban bulk collection and stop the agency from just picking a new legal justification.
The USA Freedom Act was never a universal solution
The USA Freedom Act was never praised as a universal solution — there was simply no way it could deliver a reform of the entire NSA. But it was more comprehensive than any of the alternatives. Its only real competition was the FISA Transparency and Modernization Act, proposed by House Permanent Select Committee on Intelligence chair Mike Rogers (R-MI) and fellow hardline NSA supporter Dutch Ruppersberger (D-MD). The bill limited how the NSA could collect data, but it included one huge loophole: the NSA didn’t need to get a court order before searching phone records, it just had to justify the decision afterwards. The Intelligence Committee planned to mark up its bill just a day after the USA Freedom Act.
Then, in a surprise reversal, it folded. The reason was apparently a package of changes to the Freedom Act known as the Manager’s Amendment designed to appease NSA supporters. The amendment stripped out a number of reforms that weren’t directly related to the phone surveillance program. EFF legislative analyst Mark Jaycox calls the amended text "a bill that's typical at only addressing one issue that has the attention of Congress … The USA Freedom Act was a much more comprehensive bill, it was a much more detailed bill, and it would have provided a lot more. This new bill focuses only on the calling records."
Among other things, the amendment took out a section that would make it easier for companies to reveal that they’d been ordered to give up data, and it explicitly allowed intelligence agencies to gather numbers within two "hops" of the original query, instead of restricting it only to foreign agents and their contacts. Most controversially, though, it struck out a section that applied to another NSA program: the collection of emails through Section 702 of the FISA Amendments Act. The original bill explicitly barred the practice of "backdoor searches," which let NSA agents get around bans on collecting communications from Americans by searching for data that had been inadvertently caught in the dragnet. In doing so, it would have placed new checks on the oft-overlooked email and electronic communications program originally described under the name "PRISM."
"The momentum is on the side of privacy rights and limiting government power."
Jaycox and others had held out hope that some of the rules might be restored during Judiciary Committee debate, but they were mostly disappointed. Only one change was made during hours of discussion on Wednesday: an amendment by Suzan DelBene (D-WA) that restored transparency options for companies. Rep. Zoe Lofgren (D-CA), one of the most dedicated reformers, attempted to resurrect the backdoor search provisions. But the mood during debate was one of impatience, and any substantive changes threatened to break the fragile coalition.
Lofgren’s backdoor search ban was one of her least controversial proposals. Another amendment would have required probable cause and a warrant, instead of just "reasonable suspicion," to get information from phone companies. For call records — which courts don’t even consider an actual search — this would have been an unprecedented change, fundamentally altering how the government treats metadata. The response was uniformly negative. "After a dozen years, we finally have a chance to rein back the government’s abuse and to end bulk collection, to end dragnet surveillance, we finally have a bill that can actually pass," said Rep. Jarold Nadler (D-NY). "This amendment would jeopardize that, and I don’t think we can afford that risk." The bill was rejected by every committee member except Lofgren.
"I don't think we can afford that risk."
The Intelligence Committee, meanwhile, was initially rumored to be making some unpopular changes of its own. A circulated amendment, says Center for Democracy and Technology senior counsel Harley Geiger, apparently would have made it unclear what the NSA could count as a search term when requesting data, opening a significant loophole. Unlike the Judiciary Committee, the Intelligence Committee held its hearing behind closed doors, part of a more general pattern of secrecy. Ultimately, though, the bill that emerged was the same one the Judiciary Committee had amended and approved. Rogers and Ruppersberger praised the committee for adopting "a compromise that garnered strong, bipartisan support," leaving their own proposal in limbo.
Geiger thinks the House will pass the bill on the week of May 18th — just before it votes on next year’s defense budget — in order to head off further NSA debate. Last year, Rep. Justin Amash (R-MI) and John Conyers (D-MI) unsuccessfully tried to amend the National Defense Authorization Act to ban mass phone surveillance. "I think that there's a realization that if bulk collection was not solved via normal legislative process, like USA Freedom, then there would have been another attempt," says Geiger.
When the Senate takes up its own version of the bill, the House might have to revisit its debate. Patrick Leahy (D-VT), who sponsored the USA Freedom act in the Senate, has said he will keep pushing for a stronger bill that doesn’t include the amendment’s changes. For now, though, it’s unlikely any big changes will occur before the vote. Even so, reform groups aren’t complaining much. In fact, they’re comparing it to other historic pieces of legislation. "The bill is admittedly an imperfect compromise," says Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute. "But make no mistake: USA Freedom, if passed, would still be the most powerful new law to regulate government’s national security surveillance powers since the spying scandals of the ’70s prompted Congress to pass the original Foreign Intelligence Surveillance Act." Just as importantly, it signals that Congress could be ready to take up more bills. "The momentum is on the side of privacy rights and limiting government power," says Laura Murphy of the ACLU. "While the legislation is not perfect, it looks like Congress will have the chance to pass meaningful surveillance reforms for the first time since the Patriot Act was passed in 2001."
"We need to focus beyond Section 215 of the calling records program."
Privacy advocates both inside and outside Congress are trying to keep that momentum going. "We need to focus beyond Section 215 of the calling records program," says Jaycox. "It is mostly likely — at least from the documents we've released — a single percentage, maybe less than that, of the total collection that the NSA is doing." Right now, reformers are focusing on banning backdoor searches, passing more protections for non-US citizens, and creating oversight for Executive Order 12333, a surveillance rule whose scope and applications remain mysterious. The NSA has used the order to justify some of its programs, but it exists largely outside normal oversight protections. Geiger also calls attention to the Electronic Communications Privacy Act, which limits wiretaps and electronic surveillance but was written for the world of 1986. A reform movement has been active since at least 2010, but response to the Edward Snowden leaks has recently taken precedent.
But there are larger issues at stake. No matter what text is passed in Congress, the NSA will undoubtedly search it for loopholes, and it will probably find at least a few. Even if it operates under more oversight, the secretive FISA court will still be in charge of approving court orders, and there’s no sign it won’t continue to act as a rubber stamp. And Rep. Lofgren’s doomed amendment, which would have made intelligence agencies treat metadata more like data, raises one of the most central questions: do decades-old surveillance laws even apply in today’s world?
"If the Fourth Amendment is going to actually provide protection to modern Americans, it's going to have to deal with the issue of how big data can tell someone everything there is to know about that person," said Lofgren in debate, calling for the reform of "ancient doctrines." For now, though, Congress isn’t trying to change how the government thinks of call records. It’s just trying to make them a little harder for the NSA to get.