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

The bipartisan bill is intended to prohibit bulk collection of Americans’ business records under the Patriot Act, and to increase transparency and accountability — but it falls short in some areas.

April 28, 2015

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.