Since the leaks of NSA surveillance methods began in June, there has been a flurry of activity in Congress, with members scurrying to line up on either side of the issue, either defending the agency’s methods or condemning them. That mad scramble also has included the introduction of a number of bills aimed at curtailing the surveillance, as well as some measures designed to solidify the legal framework used to justify the data collection. Lawyers at the EFF say that while some of the proposed laws are promising, a secret bill being discussed in the House and Senate Intelligence Committees is troubling.
The proposed law is being considered in both Intelligence Committees and the details of it are not yet publicly known. However, the EFF, which has consistently criticized the NSA’s mass metadata and Internet data collection, said that it appears the measure would ensure the continued collection of Americans’ records.
“The Chairs of each have confirmed that the (still secret) bill is aimed at continuing collection of everyone American’s phone records unabated. The bill will likely provide some window dressing of limited transparency, while shoring up the legal basis for the spying,” Cindy Cohn and Mark M. Jaycox of the EFF wrote in an analysis of the measures being considered right now.
“Since the leaks in June, the committees’ Chairs have defended the program with justifications the press has thoroughly debunked. While we have opinions about what the best way forward is, the only sure way to not go backwards, or seal the status quo into stone, is to stop the bill currently in the works by the Intelligence Committee chairs.”
Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, has said that while she supports increased transparency of the NSA’s data-collection methods, the programs themselves have to be allowed to continue, as they comprise the most effective weapon against terrorism.
“So our great strength today, ladies and gentlemen, in protecting this homeland, is to be able to have the kind of technology that’s able to piece together data while protecting rights. I listened to this program being described as a surveillance program. It is not. There is no content collected by the NSA. There are bits of data—location, telephone numbers—that can be queried when there is reasonable, articulable suspicion,” Feinstein said in a statement before the Senate Judiciary Committee earlier this month.
“If it looks like it’s something for an individual in this country, it then goes to the FBI for a probable cause warrant, and a full investigation takes place.I so regret what is happening. I will do everything I can to prevent this program from being cancelled out. There’s going to be a bill in my committee to do it, there’s a bill in this committee to do it.
“And that’s the basis for this program. It is legal. We are looking at increased transparency. We are looking to make some changes in it. But we are not looking to destroy it.
“To destroy it is to make this nation more vulnerable. I just wanted to say that. I had to say it.”
While the Congress tries to figure out which path to take, privacy advocates and security experts say that there are a couple of methods the government could use to make sure that the NSA is following the law and not using the PATRIOT Act and FISA to justify questionable collection methods. Cohn and Jaycox said that the most effective and direct method would be to add language to a bill to expressly forbid dragnet-style surveillance.
“There is a direct way to do this. Congress could unequivocally forbid the government from the mass collection of phone records. Congress usually does this with the phrase ‘notwithstanding any other law’,” they wrote.
A second method would be to add some language that would require information collected be both “relevant to” and “pertain to” a terrorist investigation. That’s a small, but significant, change to how things are now.
“Right now the law doesn’t require that—it only requires ‘relevance to an authorized investigation’ and then says that ‘relevance’ is presumed to be met when information ‘pertains to’ a foreign power,” Cohn and Jaycox said.