After the U.S. Congress approved what critics have called modest limits on the National Security Agency’s collection of domestic telephone records, many lawmakers may be reluctant to further change the government’s surveillance programs.
The Senate this week passed the USA Freedom Act, which aims to end the NSA’s mass collection of domestic phone records, and President Barack Obama signed the bill hours later.
After that action, expect Republican leaders in both the Senate and the House of Representatives to resist further calls for surveillance reform. That resistance is at odds with many rank-and-file lawmakers, including many House Republicans, who want to further limit NSA programs brought to light by former agency contractor Edward Snowden.
Civil liberties groups and privacy advocates also promise to push for more changes. It may be difficult to get “broad, sweeping reform” through Congress, but many lawmakers seem ready to push for more changes, said Adam Eisgrau, managing director of the office of government relations for the American Library Association. The ALA has charged the NSA surveillance programs violate the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures.
“Congress is not allowed to be tired of surveillance reform unless it’s prepared to say it’s tired of the Fourth Amendment,” Eisgrau said. “The American public will not accept that.”
Other activists are less optimistic about more congressional action. “It will a long slog getting more restraints,” J. Kirk Wiebe, a former NSA analyst and whistleblower said by email. ”The length of that journey will depend on public outcry—that is the one thing that is hard to gauge.”
With the USA Freedom Act, “elected officials have opted to reach for low-hanging fruit,” said Bill Blunden, a cybersecurity researcher and surveillance critic. “The theater we’ve just witnessed allows decision makers to boast to their constituents about reforming mass surveillance while spies understand that what’s actually transpired is hardly major change.”
The “actual physical mechanisms” of surveillance programs remain largely intact. Blunden added by email. “Politicians may dither around the periphery but they are unlikely to institute fundamental changes.”
What’s in the USA Freedom Act?
Some critics have blasted the USA Freedom Act as fake reform, while supporters have called it the biggest overhaul of U.S. surveillance program in decades. Many civil liberties and privacy groups have come down in the middle of those two views, calling it modest reform of the counterterrorism Patriot Act.
The law aims to end the NSA’s decade-plus practice of collecting U.S. telephone records in bulk, while allowing the agency to search those records in a more targeted manner.
The law also moves the phone records database from the NSA to telecom carriers, and requires the U.S. Foreign Intelligence Surveillance Court (FISC) to consult with tech and privacy experts when ruling on major new data collection requests from the NSA. It also requires all significant FISC orders from the last 12 years to be released to the public.
The new law limits bulk collection of U.S. telephone and business records by requiring the FBI, the agency that applies for data collection, to use a “specific selection term” when asking the surveillance court to authorize records searches. The law prohibits the FBI and NSA from using a “broad geographic region,” including a city, county, state or zip code, as a search term, but it doesn’t otherwise define “specific search term.”
That’s a problem, according to critics. The surveillance court could allow, for example, “AT&T” as a specific search term and give the NSA the authority to collect all of the carrier’s customer records. Such a ruling from FISC would seem to run counter to congressional intent, but this is the same court that defined all U.S. phone records as “relevant” to a counterterrorism investigation under the old version of the Patriot Act’s Section 215.
The USA Freedom Act also does nothing to limit the NSA’s surveillance of overseas Internet traffic, including the content of emails and IP voice calls. Significantly limiting that NSA program, called Prism in 2013 Snowden leaks, will be a difficult task in Congress, with many lawmakers unconcerned about the privacy rights of people who don’t vote in U.S. elections.
Still, the section of the Foreign Intelligence Surveillance Act that authorizes those NSA foreign surveillance programs sunsets in 2017, and that deadline will force Congress to look at FISA, although lawmakers may wait until the last minute, as they did with the expiring sections of the Patriot Act covered in the USA Freedom Act.
The House Judiciary Committee will continue its oversight of U.S. surveillance programs, and the committee will address FISA before its provisions expire, an aide to the committee said.
Republican leaders opposed to more changes
Supporters of new reforms will have to bypass congressional leadership, however. Senate Republican leaders attempted to derail even the USA Freedom Act and refused to allow amendments that would require further changes at the NSA.
In the House, Republican leaders threatened to kill the USA Freedom Act if the Judiciary Committee amended the bill to address other surveillance programs. Still, many House members, both Republicans and Democrats, have pushed for new surveillance limits, with lawmakers adding an amendment to end so-called backdoor government searches of domestic communications to a large appropriations bill this week.
Obama’s administration has threatened to veto the appropriations bill for several unrelated reasons, but several House members have pledged to push hard to prohibit the FBI and CIA from searching the content of reportedly tens of thousands of U.S. communications swept up in an NSA surveillance program targeting overseas terrorism suspects.
Closing that surveillance backdoor is a top priority for civil liberties groups, said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union’s Washington, D.C., legislative office. “We’ve had this statute that masquerades as affecting only people abroad, but the reality is that it sweeps up large numbers of U.S. persons,” she said.
Other changes possible
Advocates and lawmakers will also push for a handful of other surveillance reforms in the coming months. The changes most likely to pass make limited changes to surveillance programs, however.
While not tied to NSA surveillance, lawmakers will press for changes to the 29-year-old Electronic Communications Privacy Act (ECPA), a wiretap law that gives law enforcement agencies warrantless access to emails and other communications stored in the cloud for more than six months. A House version of ECPA reform counts more than half the body as co-sponsors.
Still, tech companies and civil liberties groups have been pushing since 2010 to have those communications protected by warrants, but law enforcement agencies and some Republican lawmakers have successfully opposed the changes.
Another bill that may gain traction in coming months is the Judicial Redress Act, a bill that would allow citizens of some countries to file lawsuits under the U.S. Privacy Act if government agencies misuse their records.
“The Privacy Act offers limited protections, even to Americans, but passage of this bill would be an important first step to addressing especially European concerns that US privacy reforms won’t help them,” said Berin Szoka, president of free market think tank TechFreedom.
Public pressure, along with potentially new leaks, will be the key to driving any more surveillance changes, advocates said.
“The public will for mass surveillance laws was made very clear recently, and that’s partly why we saw much of Congress flock to whatever could be called surveillance reform,” said Tiffiniy Cheng, a founder of digital rights group Fight for the Future. “No one is fooled by USA Freedom—it’s a weak piece of legislation that uses exceptions in legislative language to codify the NSA’s practice of surveilling most people.”
Congress has much work left to do, Cheng said by email. “After the recent showdown and public outcry, USA Freedom is at best, seen as a beginning of surveillance reform, not the end,” she said.