The Senate intelligence committee just gave the National Security Agency the best bill it could have asked for.
Shepherded through the commitee by its chair, California Democratic Senator Dianne Feinstein, the FISA Improvements Act purports to ban the NSA's controversial bulk collection of communications records under Section 215 of the Patriot Act. But the bill has fine print that basically allows the NSA to continue bulk collection.
"She said you can only use 215 if you follow the rules, but the rules are the same as they always were," says Michelle Richardson of the ACLU. "I think they want to create a veneer of oversight and privacy without substantively changing the programs, and you just can't do that."
Since former NSA contractor Edward Snowden leaked a secret foreign intelligence surveillance court order allowing the NSA to collect the communications records of millions of customers of a Verizon subsidiary, legislators have been at odds over whether to ban the program. Both factions are bipartisan. One, led by lawmakers like Republican Rep. Jim Sensenbrenner and Democratic Senator Patrick Leahy, sees bulk collection as an unnecessary violation of privacy and wants to ban it. The other, led by Feinstein and her House counterpart on the intelligence committee, Republican Rep. Mike Rogers, see the program as essential to national security and want to keep it.
Both sides want to claim the mantle of "reform," however, and the announcement sent out by Feinstein's office deceptively suggests that bulk collection under 215 is banned under the bill. It is not.
"It does the opposite of what the announcement claims," says Julian Sanchez, an analyst with the Cato Institute. "For the first time it really explicitly authorizes bulk collection under 215." The bill appears to ban nothing that the NSA is already doing, and authorizes exactly what the NSA wants to do. The two senators on the committee who sounded early alarms about the NSA, Oregon Democratic Senator Ron Wyden and Colorado Democratic Senator Mark Udall, voted against the FISA Improvements Act. The bill passed out of committee 11-4.
Feinstein's bill, the text of which was not released until Thursday afternoon, does have some improvements. The bill would make the NSA issue public reports about how often it queries its database, and allow outside advocates to brief the FISA court when it hears significant cases. But on the key issue, the bulk collection of data under the Patriot Act, the bill gives the NSA exactly what it wants.
Still, Sanchez sees a hopeful irony in the way Feinstein's office presented her bill. "It's clear that Feinstein thinks that if you're going to legalize bulk collection you've got to claim to be banning it."