House Removes Key Provisions of Bill Drafted to End NSA Bulk Collection of Americans' Communication Data

Posted May 28, 2014

MP3 Interview with Harley Geiger, senior counsel with the Center for Democracy and Technology, conducted by Scott Harris

USAFreedomAct

Following former NSA contractor Edward Snowden’s revelations about the government’s warrantless, dragnet surveillance of Americans communications, many Americans were increasingly apprehensive about abuses in the nation’s post-911 intelligence programs. In response to growing concern about privacy rights a bipartisan group in Congress turned their attention to drafting legislation that would limit the government’s ability to gather American’s communications data. To that end, Rep. Jim Sensenbrenner, R-Wisconsin, an original sponsor of the USA Patriot Act, introduced a bill known as the USA Freedom Act.

The Freedom Act was originally designed to rein in the dragnet collection of data by the National Security Agency and other government agencies by amending Section 215 of the Patriot Act. The proposed bill would ensure that any phone records obtained by the government were essential in an investigation that involved terrorism or espionage, thereby ending bulk collection, while preserving "the intelligence community's ability to gather information in a more focused way."

However, the Obama administration and some congressional leaders opposed many of these proposed changes, and when the Freedom Act was sent to the House Rules Committee, the bill was quickly stripped of key provisions that limited government action. These changes led many legislators who originally supported the measure to oppose it, believing that it would actually codify NSA dragnet surveillance. The bill passed the house on May 22 and now moves to the Senate. Between The Lines’ Scott Harris spoke with Harley Geiger, senior counsel with the Center for Democracy & Technology, who discusses the revisions weakening the USA Freedom Act, and how the public can influence the outcome when the bill is next considered in the Senate.

HARLEY GEIGER: This is a bill that we had supported for well over a year, same thing with some of the larger technology companies. I believe that Google and Twitter and probably others had publicly endorsed the USA Freedom Act, which is not entirely common to have technology companies and technology civil liberties advocates on the same page on something as sensitive as national security. But the consensus was that the government had gone just way too far in its interpretation and its actions. So, the bill took a long time before it finally reached the next stage in the legislative process, at least in the House of Representatives, which is a markup, and it went to the House Judiciary – that was the committee of its primary jurisdiction – and there the committee amended it in several ways.

And they amended that ban, that prohibition on bulk collection, and they changed the structure of it pretty radically. Much of the weight, much of the teeth, in the prohibition on a dragnet came to rest on a particular phrase and that phrase is "specific selection term," which I know sounds very wonky, but basically it means that, at the time, it was defined to be a term that uniquely described a person or an entity or an account. And what that means then is that when the government goes to the surveillance court – to the FISA (Foreign Intelligence Surveillance Act) court – and says, you know, the government wants to get information, they have to describe as the basis for production, as the way that they’re getting information, they have to describe a person, an entity, or an account. And so, we thought that this, although different and not entirely clear, it was still a little ambiguous because "entity" is somewhat ambiguous, we still thought that although this was different than the original USA Freedom, this was still a relatively effective ban on bulk collection. And then after the House Judiciary markup, it made its way ultimately to the Rules Committee.

A lot of people had never even heard of the Rules Committee, but it’s an extraordinary powerful committee and it basically determines in what form and how many amendments and how much debate different bills will reach the floor, and it’s the last stop before a bill goes to the House floor for a vote. It’s heavily partisan; it’s weighted very much in favor of the party that’s in the majority and it is usually handpicked by the Speaker of the House of Representatives. So, when this bill went to the Rules Committee, that key term, that key phrase that so much of the bulk collection ban rested on was altered again dramatically, and this is where it really was really, really weakened. So, whereas previously it said that a unique selection term must uniquely describe a person, entity, or account full stop, now it said a specific selection term is a discrete term that the government uses to place a limit on scope of information sought, and it gave a couple of examples such as, a person, entity, account, device, and/or address, and no one really knows what that means entirely. No one is entirely sure what that authorizes or prohibits, and that’s the point. The definition was changed from a relatively clear and exclusive list, a definition, to something that is deliberately ambiguous, open-ended, and exploitable.

What it boils down to now is it says that there just needs to be some limit, just some limit, on the scope of the information that the government seeks. So, what we interpret this to mean, again, it’s not entirely clear, this is a whole new law, but based on our interpretation of it – and this is shared by many of the other people in this space – if the government wants to get nationwide information, it probably cannot. It’s probably banned by this bill because there’s not really any limit. But, if the government wanted to get, for example, citywide or statewide information, so it said, the government said, "I would like to get the email records of everybody in Salt Lake City, Utah." You know, that is a limit; it is a limit on the scope of information as compared to nationwide surveillance. So, at that point, once the bill incorporated these provisions, the civil liberties groups, tech companies, all withdrew their support of the bill because it continued to authorize, in our opinion, unacceptably high levels, unacceptably sweeping levels of surveillance.

BETWEEN THE LINES: What is plan B among the legislators that were disappointed by the changes in the USA Freedom Act, and is there a possibility another bill can be raised? There’s still the Senate to go through, and I know that could take a while to describe what’s going to happen there, but what is plan B?

HARLEY GEIGER: Well, plan B is the Senate. The next stage of this is the Senate. And all eyes are towards the Senate right now to see whether it would be possible to improve that language, to improve that very crucial term that I described earlier. That is the best chance that we’ve got now for reform. That being said, there are many calls for additional legislation, additional bills, that address other parts of the surveillance. This really just addresses a couple of programs that we know of, egregious programs, but it certainly, USA Freedom was never intended to be a bill that fixed everything that was wrong with NSA mass surveillance.

BETWEEN THE LINES: And, one important element in all this is the input of citizens. What, in your view, is the most effective thing people can do who are concerned about NSA surveillance of American’s phone and internet and other communications? What can they do at this juncture to have an effective voice of what happens with this legislation?

HARLEY GEIGER: The best thing that people can do is to call their senators, especially if your senator is on the Judiciary Committee, particularly senators in Texas and Minnesota, but several others. Right now, the best thing is to call your senators and to say that you want a USA Freedom that actually protects your privacy and not something that is watered down, that you would like something stronger than what the House passed because what the House passed, we believe, will still enable mass surveillance.

Find more information about the Center for Democracy and Technology, by visiting CDT.org. Transcript compiled by Evan Bieder.

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