Our Privacy and Liberty Still at Risk, Even if Leahy NSA Bill Passes

And yet, even if the Senate version becomes law, Amer­ic­ans’ private inform­a­tion will remain vulner­able—un­der both  the domestic programs addressed by the bill and other, much larger, programs nomin­ally targeted at foreign­ers. As Leahy acknow­ledged when intro­du­cing the bill, much more remains to be done to protect the privacy and civil liber­ties of law-abid­ing Amer­ic­ans.

 

The good news first: The Senate bill would require any collec­tion of busi­ness records to be based on a “specific selec­tion term, ” such as a name or account, that narrowly limits the scope of collec­tion “to the greatest extent prac­tic­able.” The bill includes a non-exhaust­ive list of selec­tion terms that are deemed too broad, includ­ing area codes, zip codes, and names of tele­com­mu­nic­a­tions compan­ies. The Foreign Intel­li­gence Surveil­lance Court (FISA court) would have to approve the selec­tion terms in advance and assess whether the records would be relev­ant to an author­ized invest­ig­a­tion. These provi­sions would not only end the NSA’s bulk collec­tion of tele­phone records; they would preclude any analog­ous program for Inter­net, finan­cial, or credit records.

 

The bill also leans on the exec­ut­ive branch to be more trans­par­ent about surveil­lance activ­it­ies. It would require the director of national intel­li­gence to make public either a redac­ted version or a summary of any signi­fic­ant opin­ion by the FISA Court. It also would require far more detailed stat­ist­ical report­ing on the use of surveil­lance author­it­ies. For the first time, the govern­ment would publicly report the number of indi­vidu­als affected by vari­ous surveil­lance program­s—in­clud­ing, for most programs, a separ­ate estim­ate of the number of affected Amer­ic­ans. And the bill would estab­lish a panel of paid privacy advoc­ates who could appear in FISA court proceed­ings, which currently take place with only govern­ment offi­cials present.

 

In these and many other respects, the bill should lead to a marked improve­ment over the status quo. But the oper­at­ive word here is “should.” The bill’s defin­i­tion of “specific selec­tion term” is neces­sar­ily impre­cise. Congress would not limit the exec­ut­ive branch to obtain­ing the records of named suspects, because in some cases the very reason for seek­ing the records will be to identify the suspect —for instance, where the FBI has a tip about a plot to bomb a partic­u­lar airliner and seeks to obtain the passen­ger mani­fest. Rather than impose an exact but too-strict defin­i­tion, the bill attempts to focus collec­tion through phrases like “narrowly limit” and a list of terms that would not be narrow enough.

 

Although the legis­lat­ive intent behind this approach is clear, the exec­ut­ive branch could exploit the absence of a bright-line restric­tion to engage in collec­tion that is far broader than neces­sary, even if it falls short of “bulk” collec­tion. It would not be the first time the exec­ut­ive branch twis­ted Congress’s words with the FISA court’s bless­ing.

 

Under the bill’s require­ment to disclose signi­fic­ant FISA court inter­pret­a­tions, the public should know if such a perver­sion of congres­sional intent has taken place. But here, too, there is the poten­tial for the exec­ut­ive branch to disreg­ard the spirit of the legis­la­tion. The bill allows the exec­ut­ive branch to decide which court opin­ions meet the bill’s defin­i­tion of “signi­fic­ant” and how much inform­a­tion may be disclosed consist­ent with national secur­ity. In theory, noth­ing would prevent the director of national intel­li­gence from releas­ing an opin­ion with every sentence but one redac­ted.

 

Even assum­ing faith­ful imple­ment­a­tion, the bill leaves some holes. It specifies no time limits for when intel­li­gence agen­cies must discard inform­a­tion about Amer­ic­ans that has not been deemed to have any foreign intel­li­gence value. It impli­citly accepts the admin­is­tra­tion’s specious claim that it cannot even estim­ate the number of Amer­ic­ans whose commu­nic­a­tions are swept up under a program that targets foreign­ers’ calls and e-mails. And it allows the FISA Court to determ­ine when, if ever, it wishes to hear from the panel of privacy advoc­ates. 

 

The bill also creates a new tele­phone records collec­tion program. While the exec­ut­ive branch would not be allowed to collect phone metadata in bulk, it would be entitled to obtain records, not only of suspec­ted terror­ists, but of anyone in contact with them – an auto­matic second “hop.” Phone compan­ies would produce all such records to the govern­ment on an ongo­ing basis, and the result­ing data­base could be kept indef­in­itely and quer­ied for any purpose. Given that two inde­pend­ent, pres­id­en­tially-appoin­ted commit­tees concluded the tele­phone metadata program had little value, it is unclear, at best, why even a scaled-down version of it is needed.

 

Of course, the perfect should never be the enemy of the good—and on Capitol Hill, where the perfect is gener­ally off the table, the good should not be the enemy of the better. But the oppos­ite is true as well. A bill that makes improve­ments to the status quo, even signi­fic­ant ones, can back­fire if it dissip­ates the incent­ive for addi­tional reform.

 

That risk deserves partic­u­lar atten­tion here, where so many of the govern­ment’s most intrus­ive surveil­lance prac­tices have been left to another day. The bill’s archi­tects delib­er­ately deferred substant­ive reform of Section 702 of the FISA Amend­ments Act, a 2008 law that allows the NSA to collect the content of Amer­ic­ans’ inter­na­tional commu­nic­a­tions without a warrant. Nor does the bill tackle the over­seas collec­tion of commu­nic­a­tions under Exec­ut­ive Order 12333, which oper­ates with no involve­ment of the FISA court and little over­sight by Congress. If bulk collec­tion is the tip of the surveil­lance iceberg, alarm­ing because of its visib­il­ity, these other programs are the loom­ing under­side.

 

Reach­ing consensus on how to reform these massive, poorly under­stood programs will be chal­len­ging, to say the least. Leahy and his co-spon­sors were right not to hold other reforms host­age. But if the bill becomes law, lawmakers and the public must not betray its prom­ise by assum­ing that the balance between our liber­ties and our secur­ity has been restored.

 

(Photo: AP)