Several of the nation’s top justice and intelligence officials were summoned to the Senate intelligence committee Thursday to discuss the first major surveillance reform bill since the first leaks facilitated by former NSA contractor Edward Snowden a year ago.
They’re feeling pretty good about it.
“We support the USA Freedom Act as an effective means of addressing some of the concerns that have been raised about the impact of our intelligence collection activities on privacy while preserving the authorities we need for national security,” Deputy Attorney General James Cole told the panel.
Civil libertarian groups are significantly more ambivalent. Several rescinded their endorsements of the House-passed bill after the White House insisted upon changes, and several of the bill’s original sponsors withdrew their support. The current version of the USA Freedom Act would end the controversial phone records program conducted under Section 215 of the Patriot Act, which collects the date, time, duration and numbers involved in Americans’ phone calls. The government would only be allowed to collect records two degrees away from a target rather than three, and only with the permission of the secret intelligence surveillance court.
Yet civil liberties groups believe the language of the bill would allow “bulky” collection even if it outlaws bulk collection. Specifically, they’re concerned about the phrase “specific selection term,” which they believe at this point would allow the government to collect data based on something so broad as an entire area code. Gabe Rottman of the ACLU said the bill did not adequately protect Americans’ privacy in its current form.
Colorado Democratic Sen. Mark Udall said “The NSA has shown time and time again it will seize on any wiggle room in the law and there’s plenty of that in this bill.” Even Senate intelligence committee chair Dianne Feinstein, seen as a staunch ally of the NSA, expressed concern that the definition of “specific selection term” was “not clear on its face” and called it “confusing.”
The NSA wouldn’t have the large database it had under the old phone records program, but they would still be able to potentially collect hundreds of thousands of records at a time. The bill requires the “prompt destruction” of records if the government determines they don’t contain foreign intelligence information.
Although the original intent of the bill was to prevent the government from developing a large repository of Americans’ private information, Georgia Republican Sen. Saxby Chambliss expressed concern that without a requirement that the telecommunications companies hold the information for a certain amount of time, the government might someday be prevented from acquiring it even under the new restrictions. Telecommunications companies have tried to avoid legal requirements that they retain data any longer than they currently do.
Feinstein also expressed concern about companies not retaining data. “I’m concerned we’re going to end up with this whole program going down,” Feinstein said.
Untouched in the bill is section 702 of the FISA Amendments Act, which is aimed at foreign targets but under which the content of Americans’ communications have been collected. Critics have termed these “backdoor searches” because the government can search through Americans’ communications without a warrant if collected under 702.
Oregon Democratic Sen. Ron Wyden asked Richard Ledgett, the Deputy NSA Director, how often Americans’ communications have been searched under Section 702. Ledgett didn’t answer the question, but he pledged to respond to Wyden’s inquiry in written form in two weeks’ time.
The original phone records program still has defenders. Chambliss warned against altering the program and said he wasn’t concerned about privacy. “I’m not worried because I’m not talking to terrorists,” Chambliss said. West Virginia Democratic Sen. Jay Rockefeller said the Freedom Act might “make the public feel better” but could undermine national security. Stewart Baker, a former general counsel for the National Security Agency, said the Freedom Act was “privacy theater” that would “get people killed.”
Two independent government investigations have found that the phone records program was not essential to preventing terrorism.
The Freedom Act passed the House easily with wide bipartisan support, but it faces a more uncertain fate in the Senate, where the NSA’s activities have more defenders in both parties.