Revelations that the NSA collected the telephone and email records of hundreds of millions of Americans have sparked intense debate over reforming the law to replace bulk collection activity with targeted surveillance. Members of Congress and the Obama Administration have drafted several proposals addressing bulk collection. CDT, as well as many other public interest groups, supports only one of these – the USA FREEDOM Act.
CDT and more than forty other public interest groups recently sent a letter to key Members of Congress and the Administration, expressing support for the USA FREEDOM Act and calling for three key reforms to be included in any legislation to end the National Security Agency’s bulk collection activities. Specifically, we called for legislation that:
1) Prohibits the bulk collection of all types of data, since the government claims authority to collect many types of information in bulk;
3) Requires the government to obtain court approval before demanding private records.
Below is an overview of the major legislative proposals to address bulk collection, and how each proposal handles these necessary reforms.
Introduced by Representatives Sensenbrenner and Conyers in the U.S. House, and by Senators Leahy and Lee in the Senate. In the House, the bill has 143 cosponsors, including a majority of the House Judiciary Committee. In the Senate, the bill has 21 cosponsors. The USA FREEDOM Act effectively replaces bulk collection with targeted surveillance authority:
- Prohibits bulk collection of all types of data: The USA FREEDOM Act ends bulk collection in a tech-neutral manner by changing the standard by which government can obtain records. Sections 101, 201, and 501 of the bill makes clear that the government must show it has reasonable grounds to believe that the records sought pertain to a target of surveillance, someone in contact with the target, or the activities of the target. This applies not just to phone or Internet records, but all types of data.
- Prohibits bulk collection under multiple authorities: The USA FREEDOM Act prohibits bulk collection under Section 215 of the PATRIOT Act, the Pen/Trap statute, and national security letter authorities.
- Prior court approval: Section 215 and the Pen/Trap statute currently require the government to obtain court approval prior to demanding records. The USA FREEDOM Act preserves this requirement and provides the FISA Court with additional discretion to push back on government surveillance requests.
Introduced by Representatives Rogers and Ruppersberger, the Chair and Ranking Member of the House Permanent Select Committee on Intelligence (HPSCI). The bill currently has 12 cosponsors, all of whom are members of HPSCI.
The sponsors of H.R. 4291 claim the bill aims to end bulk collection for all types of data under the Foreign Intelligence Surveillance Act (FISA). Instead, under H.R. 4291, the government would query records voluntarily held by companies. However, there are several problems with H.R. 4291 that significantly undermine its stated goal of ending bulk collection:
- Continued bulk collection: H.R. 4291 would continue to allow for bulk collection of telephone records. Section 2 of H.R. 4291 removes telephony metadata or “call detail records” from Section 215 of the PATRIOT Act, but would not prevent bulk collection of phone records under the Pen/Trap statute or other authorities.
- Unclear collection limits: In Sections 3-4, the bill attempts to end bulk collection of electronic communications records by requiring FISA orders for data to include “specific identifiers or selection terms.” Yet the bill does not define the crucial but vague phrase “specific identifiers or selection terms,” so it is unclear how broad the identifiers or selectors can be. In addition, the definition of “electronic communications” does not cover all types of data.
- Court doesn’t approve collection beforehand: H.R. 4291 does not require the government to obtain court approval prior to demanding records. As currently written, both Section 215 of the PATRIOT Act and the Pen/Trap statute require the government to obtain court approval prior to demanding records. H.R. 4291 removes this safeguard and allows courts to review the records request after the surveillance takes place.
- Conflicting “notwithstanding any other law” clauses: Sections 2-4 of H.R. 4291 aim to limit bulk collection, yet Section 11 begins with a “notwithstanding any other law” clause that appears to trump Sections 2-4.
- Exploitable language: H.R. 4291 has a convoluted framework and a great deal of ambiguous language, which intelligence agencies may exploit in unexpected ways. For example, many people did not anticipate that the language of Section 215 of the PATRIOT ACT could be used to justify bulk collection of Americans’ telephone records. It is important for any new language to be clearer about the limits of surveillance authority.
III. Administration Proposal
The Obama Administration has provided the public with only the outline of a proposal to reform the NSA’s bulk collection of telephone records. Though it appears unlikely that the Administration will publicly release specific legislative language, the Administration is actively working with Congress to advance its priorities in reform legislation.
The Administration proposes to end government’s collection of Americans’ telephone records, and instead allow the government to query records held voluntarily by companies. The Administration’s public proposal has several pros, cons, and unanswered questions:
- No stance on bulk collection of data other than phone records: The Administration’s proposal does not take a position on prohibiting the bulk collection of data other than phone records, yet Section 215 of the PATRIOT Act applies broadly to business records, not just phone records. If legislation focuses only on phone records, it would leave open the possibility that other types of records can be collected in bulk.
- No stance on reform beyond Section 215: The Administration’s proposal does not take a position on reform of other legal authorities that can be used to authorize bulk collection, notably the Pen/Trap statute. The government used the Pen/Trap authority for bulk collection of Americans’ Internet metadata until 2011.
- Prior court approval: The Administration’s proposal supports a legislative requirement that the government get court approval prior to demanding phone records, absent an emergency situation, which is positive. Like current pen register authority, a court order would allow for more multiple queries over an unspecified period.
- “Technical assistance”: The Administration’s proposal includes a requirement that the recipient of a government demand for records (i.e., a telecom company) provide the government with technical assistance to ensure the records can be queried and the results transmitted in a usable format. Though it is unclear how broad this requirement will be, it would raise significant concerns if companies were required to store their records in a particular format.