NSA Reform Bill Aims to End “Bulk Collection” of Americans’ Records, But Falls Short on Other Needed Reforms

Bipartisan groups of lawmakers in both chambers of Congress — including Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) and Reps. Jim Sensenbrenner (R-Wis.), Bob Goodlatte (R-Va.), John Conyers (D-Mich.), and Jerrold Nadler (D-N.Y.) — are expected to introduce the USA FREEDOM Act today. The bill is intended to prohibit bulk collection of Americans’ business records under Section 215 of the Patriot Act and other foreign intelligence collection authorities and to increase transparency and accountability in surveillance.

“Nearly two years after Snowden’s disclosures, there is no excuse to continue a program that violates the privacy of nearly every American without making us any safer,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “If implemented faithfully, this legislation would end bulk collection of Americans’ phone, financial, and credit records under foreign intelligence authorities. That reform is the critical first step in bringing our nation’s surveillance practices back in line with our values. The bill’s co-sponsors should be commended for advancing this important change.”

“Unfortunately, the bill falls short in some areas,” Goitein added. “It allows the NSA to keep too many records for too long, and there are significant loopholes in the transparency and accountability provisions. And the bill includes a disturbing provision that would extend the maximum sentence for individuals convicted of providing material support for terrorism from 15 to 20 years. While those who provide funds, arms, and combat services to terrorists should be punished, the law has been used to criminalize and chill pure speech and even humanitarian aid. No American should face 20 years in prison for expressing his or her beliefs or helping provide food to hungry children.”

“Ending bulk collection is an important and necessary step. But we must remember that Snowden revealed a number of overbroad NSA programs that threaten the privacy of Americans, and this bill only addresses a small fraction of them,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “When collecting information about foreigners under a program like PRISM, the government inevitably collects Americans’ e-mails, text messages, and other communications. These remain in an NSA database and are available to law enforcement without a warrant. We need wholesale surveillance reform to divert the intelligence community from its current ‘collect it all’ approach.”

The bill to be introduced today is a modified version of the legislation introduced in the Senate last year by Sen. Leahy, which Republicans filibustered in a floor vote in November. It would prohibit bulk collection of Americans’ phone records, along with other records held by third parties, by requiring the government to use “specific selection terms” when applying to the FISA Court for collection orders. It also would require the Director of National Intelligence to publicly release redacted versions or summaries of significant FISA Court opinions, as well as limited statistics on the government’s use of surveillance authorities. And it would create a panel of attorneys who could be called upon by the FISA Court to provide another perspective in court proceedings.

Like last year’s version of USA Freedom, the bill does not attempt to reform the NSA’s largest and most intrusive surveillance programs: the domestic collection of international communications under Section 702 of the FISA Amendments Act, and the overseas collection of communications and other data under Executive Order 12333. While these programs nominally target foreigners overseas, they “incidentally” sweep up Americans’ calls and e-mails in amounts that likely dwarf the NSA’s telephone metadata program.

For more information, or to set up an interview, please contact Erik Opsal at erik.opsal@nyu.edu or 646–292–8356.