Today, the House Permanent Select Committee on Intelligence (HPSCI) approved a compromise bill on NSA reforms that was unanimously approved yesterday by the House Judiciary Committee. The bill combines aspects of the USA FREEDOM Act and a more conservative NSA reform bill originating in the HPSCI.
“This compromise bill could advance NSA reform by breaking the logjam between the USA FREEDOM Act and the rival intelligence committee bills in both the House and Senate,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The bill takes an important step forward by banning the bulk collection of all types of records, not just the Section 215 phone metadata program. It also keeps the critical protection of judicial pre-approval, which the House intelligence committee bill would eliminate.
“Nonetheless, work remains to be done to ensure that this bill protects the content of Americans’ communications as well as the metadata and it is imperative that strong transparency measures be restored as the bill moves forward,” Goitein added. “If there is one lesson we all should have learned by now, it’s that secret oversight is weak oversight.”
“The Judiciary bill is still much better than the House Intelligence Committee bill,” said Michael German, a Brennan Center fellow. “But the devil is in the details. With so much still unknown about how these programs operate and how surveillance laws are interpreted, we’re trying to put a puzzle together with missing pieces. We need clear laws with bright lines protecting our privacy to restore public trust in the intelligence agencies.”
The bill approved today aims to end the bulk collection of Americans’ telephone records by the NSA and prohibit other types of bulk collection by requiring any records obtained to be linked to a specific person, account, or entity. The government could still obtain an order from the secret FISA Court to collect individuals’ phone records, as well as people two “hops” removed from those individuals, where relevant to a terrorism investigation.
However, unlike the original USA FREEDOM Act, the compromise bill would not end “back door searches.” Under this practice, the government collects the content of phone and e-mail communications without a warrant based on a pledge that it is “targeting” foreigners overseas, but then searches for communications to, from, or about Americans. The compromise bill also omits key transparency provisions, including government reporting requirements and a provision for a special advocate to argue the other side in significant cases before the secret FISA Court.