Congress now is expected to revise NSA, FISA court operations
10/07/2013 3:10 PM
08/11/2014 12:36 PM
In the four months since former defense contractor Edward Snowden revealed the National Security Agency’s electronic data collection programs, the question of intelligence restructuring has been persistent in Congress. Despite the focus on the government shutdown and the upcoming debt-ceiling fight, a surge in legislation that touches on the surveillance programs suggests that the issue isn’t going away without some kind of action from lawmakers.
Twenty-two standalone bills have surfaced on Capitol Hill since Snowden’s leaks in June, ranging from minor changes to massive policy overhauls for the NSA and its metadata collection programs. The sheer number signals a collective agreement from lawmakers that some kind of legislative response is needed to curb growing public concern over the nation’s intelligence practices.
“Something is absolutely going to happen,” said Michelle Richardson, a legislative counsel for the American Civil Liberties Union. “But the question is what. How aggressive will it be?”
Given the wide span of proposed changes, there’s no easy answer.
The bills touch on dozens of issues that the NSA controversy has raised. Some address only Section 215 of the USA Patriot Act, which allows the agency to collect domestic cellphone data from private companies. Others call for changes in the way the Foreign Intelligence Surveillance Court – the secret court that oversees NSA surveillance programs – operates. Still others would levy new reporting requirements on the agency’s programs.
The piecemeal legislative approach clouds a clear pathway to changing the programs. But recent weeks have seen the filing of more comprehensive proposals from high-profile voices on Capitol Hill, signaling that an overhaul may be more likely than the programs’ defenders once thought.
Last month, Sen. Ron Wyden, D-Ore., a critic of the agency, unveiled what experts have called the most comprehensive NSA legislation to date. The bill, which also has drawn Republican support, would outlaw the bulk collection of metadata under the agency’s 215 program, forbid a program authorized by Section 702 of the Foreign Intelligence Surveillance Act from touching domestic data, change the way judges are appointed to the Foreign Intelligence Surveillance Court and require more transparent reporting from the NSA and third-party companies.
Similar legislation is in the works from Senate Judiciary Chairman Patrick Leahy, D-Vt., who said he was working on a bill with Rep. Jim Sensenbrenner, R-Wis., that also would outlaw bulk metadata collection, as well as change the FISA court and demand more transparency from the NSA’s programs.
Leahy and Sensenbrenner have been highly critical of the agency’s interpretation of the Patriot Act, and their calls for change carry extra weight.
“Leahy and Sensenbrenner were the ones who negotiated the first Patriot Act,” Richardson said. “It really means a lot to have them leading the reform charge.”
Senate Intelligence Committee Chair Dianne Feinstein, D-Calif., has announced plans to introduce legislation in coming days that would curb some of the NSA’s programs and require Senate confirmation for the head of the agency. Although her proposals aren’t as comprehensive as those of her Senate colleagues, the fact that Feinstein, a defender of the NSA, is sponsoring revisions at all lifts hope among privacy advocates that the issue won’t simply be overwhelmed by other priorities.
“It’s a great sign that you have people like Feinstein announce that she’s doing her own bill,” Richardson said. “That’s an acknowledgement that this issue is not going away without some sort of congressional response.”
But the moderation in Feinstein’s legislation – one provision would expand the NSA’s surveillance authorities – also suggests that a cohesive restructuring agenda is still unclear.
Critics have suggested that moderate proposals such as Feinstein’s might be an attempt to curb more stringent changes – an effort to respond to public pressure without weakening the NSA’s programs. It’s a move that senior House Intelligence Committee member Adam Schiff, D-Calif., said would be unlikely to work.
“I think there will certainly be a modest reform proposed as a way of demonstrating a response to the concerns that have been raised,” said Schiff, who’s proposed three of the 22 bills and plans to co-sponsor more. “I don’t think a moderate reform is going to be enough for a majority of members in the House or Senate.”
Schiff said several comprehensive bills were still in the works. Most notably, the House of Representatives Intelligence and Judiciary committees are working on their own versions to balance those of their Senate counterparts.
Schiff predicted that the Judiciary Committee bill is likely to be more aggressive.
“There are a lot of moving pieces, and it’s hard to see where it’s all going to shake out,” he said.
The moving pieces may come together in the defense authorization bill, which many legislators have agreed is the most likely avenue for changes to NSA practices. Sen. Richard Durbin, D-Ill., had Appropriations Committee-approved language added to the bill, which authorizes the Defense Department to spend money, in August that would require more transparency from the NSA and the Foreign Intelligence Surveillance Court, and lawmakers say there’s room for more. Sen. Carl Levin, D-Mich, the chair of the Senate Armed Service Committee, called the defense bill “the best way to do it.”
“Usually, that’s a must-pass bill,” he said.
Mark Jaycox, a policy analyst for the Electronic Frontier Foundation, an organization that advocates for Internet freedom, said calls for changing NSA operations had evolved as more and more details had been revealed about the data collection programs, including the declassification of court decisions indicating errors and abuses of information.
“At first you had a leak, and then you had a bill to address that leak,” Jaycox said. “You’re now seeing senators develop comprehensive reform, and you’re seeing senators grasp the totality of the Section 215 violations, the Section 702 violations and the transparency issue. . . . I think there’s a very good chance that we’re going to see comprehensive reform.”
Jaycox’s certainty is a departure from what congressional experts had expected as lawmakers reconvened in early September, when questions about Syria and the federal budget eclipsed calls for addressing the NSA issues. “First they said, ‘Oh, it won’t survive August recess,” Richardson said. “And then they said, ‘It won’t survive Syria.’ ”
But the string of proposals in recent weeks suggests that the issue hasn’t died.
“It is settled that Congress will pass something,” Jaycox predicted. “The question for Congress . . . is how strong will that reform be?”
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