Members of Congress may soon face a stark choice: To endorse legislation that would permit a secretive military intelligence agency to collect a record of all phone calls made to, from or within the U.S., or endorse a competing proposal that would outlaw it.
The bills are being introduced in response to the NSA’s ongoing collection of telephony metadata of all Americans and its collection of the contents of Internet communications under the PRISM program, which operates under Section 702 of FISA.
The Intelligence Oversight and Surveillance Reform Act, S. 1551, sponsored by Senators Ron Wyden (D-WI), Mark Udall (D-CT), Richard Blumenthal (D-NJ), and Rand Paul (R-KY) would balance civil liberties and security by ensuring that information collected under Section 215 and two other surveillance authorities pertains to a terrorist, spy, or other agent of a foreign power, or to people in contact with them or to the activities of such agent of a foreign power. The requirement of a tie to a foreign power would effectively end the bulk collection program and preclude new bulk collection programs relating to location information, credit records, and other data. Reps. Sensenbrenner and Conyers are expected to introduce similar legislation in the House.
In contrast, legislation that Senators Diane Feinstein (D-CA) and Saxby Chambliss (R-GA) are drafting would codify bulk collection. Under their approach, as outlined by Senator Feinstein at a hearing on September 26, the NSA would continue to collect records of every phone call made to/from/within the U.S. and its agents would continue to query the database when they have a “reasonable articulable suspicion” that an identifier used to query the database is “associated” with terrorism. The nature of the association has not been articulated, raising the concern that minimal association will suffice. The Foreign Intelligence Surveillance Act (FISA) court would not authorize the queries and would not make the reasonable articulable suspicion finding that justifies the query; instead, the NSA’s agent would do the query and the FISA court would be informed later. The bill would also reduce the period for which phone records are retained, but the number of years of retention has not been specified. The bill would also require additional reporting about the number of queries made of the database each year and the number of warrants issued based on queries made. These are not significant improvements to the program, but their price – a statutory footing for an illegal bulk surveillance program – is far too high.
In contrast, the Intelligence Oversight and Surveillance Reform Act would enact meaningful changes that protect Americans’ rights, and restore proper bounds to the scope of government surveillance of its citizens. The bill would end the bulk collection program, prohibiting the ongoing collection of all Americans’ phone records. At the same time, this legislation would provide government with the necessary means to protect national security, permitting collection of records of terrorists, spies and other agents of a foreign power, anyone in contact with or known to such a person, and records that pertain to the activities of such person.
Additionally, the Intelligence Oversight and Surveillance Reform Act would prohibit the bulk collection of Internet metadata. The NSA had collected this data until 2011 under the pen/trap provision of the Foreign Intelligence Surveillance Act. It abandoned the effort when the NSA acknowledged that Internet metadata did not sufficiently aid security. This is an important reform because Deputy Attorney General James Cole recently stated that the government retains the authority to engage in bulk collection of not just phone records, but also any “bulk records if they can show relevance to a foreign investigation.” The bill would ensure that the government could not redirect the bulk collection program to the pen/trap or National Security Letter statutes by imposing for those statutes the same heightened standard that it imposes for Section 215 surveillance: the person to whom the records pertain must be a terrorist, spy, or other agent of a foreign power, a person in contact with or known to such person, or the records must pertain to the activities of such person.
The two bills also take very different approaches to Section 702, the provision of FISA that the NSA uses to monitor for foreign intelligence purposes communications to, from or about persons reasonably believed to be abroad. Since those communications are numerous and sometimes include an American on one end, many Americans’ communications are also collected. The Wyden bill would require a warrant to query the Section 702 surveillance product for the communications of a particular U.S. person. This is a significant protection for Americans. The Feinstein-Chambliss bill would not offer this protection. Instead, a foreign intelligence purpose for the query would suffice – a test easily met because the information in the database could only be collected for foreign intelligence purposes anyway.
The FISA reform bills that Congress will consider in the coming weeks offer a clear contrast: Senator Wyden’s Intelligence Oversight and Surveillance Reform Act would end universal collection of Americans phone records, while the Feinstein-Chambliss bill would serve as a legislative endorsement of the bulk collection program in its current form. Members of Congress will decide whether they support true substantive reform, or a continuation of the status quo.