House to Vote on Watered-Down Surveillance Reform Bill

May 21, 2014

Tomorrow, the House of Representatives is expected to vote on a substantially weakened NSA reform bill, after House leadership acquiesced to pressure from the administration and watered down the bill’s bulk collection prohibition and transparency provisions.

“To call this a disappointment is an understatement,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “The president has publicly called for an end to bulk collection, and the House managed to forge a broad bipartisan consensus on a bill that would do just that. But behind closed doors, the administration worked to undermine the bill and eliminate the clarity it would have provided.”

Last week, the Judiciary and Intelligence Committees had unanimously approved a bill that was itself a compromise, as it omitted many of the reforms contained in the original USA FREEDOM Act, a bill sponsored by Rep. James Sensenbrenner.

“The bill that came out of the judiciary and intelligence committees contained critically important language that would have ended the bulk collection of Americans’ telephone records and other types of data,” said Goitein. “By contrast, the version produced by the administration and House leadership is frustratingly ambiguous on this point.”

In particular, while the House compromise bill would have required any request for records to be tied to a clearly defined set of “specific selection terms,” the substitute language leaves the definition of “specific selection terms” open.

“This could allow for an overly broad and creative interpretation, which is something we’ve certainly seen from the executive branch and the FISA Court before,” added Goitein.

The new version also  strips out a provision that would have strengthened the prohibition against using warrantless surveillance authorities, available only when the government is targeting foreigners overseas, as a pretext for targeting Americans.

“It is particularly galling that the administration objected, in secret, to certain provisions that would have allowed companies to report more detailed statistics about government requests,” said Goitein. “In January, Director of National Intelligence James Clapper told the Senate Intelligence Committee that ‘the major takeaway’ from the Snowden disclosures was that ‘we must lean in the direction of transparency, wherever and whenever we can.’ Apparently this testimony was no more reliable than his flat denial in March 2013 that the NSA was collecting any type of data on millions of Americans.”

The bill could receive a vote on the House floor as early as Thursday. If it passes, the ball will move to the Senate’s court, where the original USA FREEDOM Act has yet to be marked up in the Judiciary Committee.

“If the Senate wants to pursue meaningful NSA reform, it must restore the protections that were stripped out on the House side,” said Goitein. “The original USA FREEDOM Act remains the most promising and comprehensive attempt to protect Americans’ privacy.”