While members of Congress reveled in a rare show of bipartisanship Thursday as they approved legislation to dramatically change the federal government’s beleaguered bulk data collection system, an influential chorus of critics warned the bill was little more than a watered-down feel-good exercise.
The 303-121 vote in the House of Representatives for the USA Freedom Act got lavish praise from key members of both political parties. Intelligence Committee Chairman Mike Rogers, R-Mich., talked of a “sweet spot” between maintaining national security and protecting Americans’ privacy, and a parade of politicians about to head home for a long Memorial Day recess agreed.
But just beneath the surface were serious concerns. The bill now goes to the Senate, where Judiciary Committee Chairman Patrick Leahy, D-Vt., said he was disappointed the changes didn’t go far enough.
Sen. Ron Wyden, D-Ore., who has been active on surveillance issues, had stronger feelings. “I am gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicion-less mass surveillance,” he said.
Many legal watchdog groups agreed. “To call this a disappointment is an understatement.” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security program.
Nuala O'Connor, president and CEO of the Center for Democracy and Technology, found the bill “now offers only mild reform and goes against the overwhelming support for definitively ending bulk collection.”
Lawmakers opposing the bill were largely a collection of libertarian Republicans and liberal Democrats.
“This legislation still allows the government to collect everything they want against Americans – to treat Americans as suspects first and citizens second,” said Rep. Rush Holt, D-N.J.
Critics were particularly upset how the legislation that had been approved earlier this month by the intelligence and judiciary committees underwent changes in recent days, after closed-door negotiations with intelligence agency officials. The White House on Wednesday offered strong support of the new version.
The bill would end the bulk collection of Americans’ business records, including telephone and electronic communications, under Section 215 of the Patriot Act. Call-detail records can only be gathered on a case-by-case basis, and only after approval from the Foreign Intelligence Surveillance Court.
Intelligence agencies say collection of the records is necessary to ensure they can quickly access the records during an investigation of a foreign terror suspect. By casting such a wide net, however, the agencies ended up collecting and storing millions of innocent Americans’ call records.
The bill would now require the National Security Agency and the FBI to limit their collection to two links from a terror suspect and be based on a “specific selection term.”
The definition in the original bill would have limited that selection term to a “person, entity or account,” which gave civil liberties organizations hope that the bill would prove effective in ending all bulk collection under one provision of the law.
But the bill voted on Thursday broadened the definition, leaving it open-ended and potentially allowing for very broad selection of records, such as all call records to or from a certain country.
Many who backed the bill echoed the thoughts of Rep. Jerrold Nadler, D-N.Y., who acknowledged concerns that the current definition of specific selection term “may still allow overbroad collection.”
But, he said, there is protection against abuse. The bill has provisions that would bar the government from using an entire telephone area code or Internet router to collect and warehouse records “just because a terror suspect might be using a phone in that area code or sending communications that might traverse that router,” Nadler said.
Even if a FISA court defines a “specific selection term” too broadly, “other reforms in the bill ensure that Congress and the American people would know about it immediately.” Nadler said.
Wyden was unconvinced. “While this bill’s authors may not intend for it to be interpreted so broadly, the executive branch’s long track record of secretly interpreting surveillance laws in incredibly broad ways makes it clear that vague language is ineffective in restraining the executive branch,” he said.
Given the intelligence community’s “record of consistently making inaccurate public statements about these laws in order to conceal ongoing dragnet surveillance of Americans, it would be naive to trust the executive branch to apply new surveillance laws with restraint,” Wyden warned.
Privacy and civil liberties activists denounced the measure, saying it had been “gutted” to win agreement from lawmakers, particularly on the Intelligence Committee, who supported the NSA phone records program.
“This legislation was designed to prohibit bulk collection but has been made so weak that it fails to adequately protect against mass, untargeted collection of Americans’ private information,” O'Connor contended.
Supporters, though, argued the bill was an important first step and tended to share the view of the American Civil Liberties Union.
“While far from perfect, this bill is an unambiguous statement of congressional intent to rein in the out-of-control NSA,” said Laura Murphy, director of the ACLU’s Washington legislative office.
Without the bill, she said, “we would be left with no reform at all, or worse, a House Intelligence Committee bill that would have cemented bulk collection of Americans’ communications into law.”
She and others vowed to take the fight to the Senate, which is not expected to consider the matter until later this summer.
There are several ideas being considered. Rep. Adam Schiff, D-Calif., an Intelligence Committee member, urged an independent public advocate for the FISA court, the secret judicial body that sets the legal parameters for NSA surveillance that touches on Americans.
Such an advocate could challenge the government’s legal positions on what surveillance is permissible, he said. As it stands, the FISA court only hears from the government. No one represents the American public, whose data is being collected, or the terror suspect.
If there was consensus, it was summed up by Rep. John Conyers of Michigan, the top House Judiciary Committee Democrat.
“There is room for improvement,” he said. “I haven’t met a member who voted for this legislation who doesn’t have an idea how to make it better.”
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