Row Deepens Over Bulk Collection BillDismay Voiced over White House Backing of Revisions
Much to the annoyance of civil libertarians, the White House has backed a revision to the USA Freedom Act that is seen as watering down the legislation aimed at curtailing the federal government's bulk data collection program.
Because of a last-minute change of language in the measure, HR 3361, the Center for Democracy and Technology, Electronic Frontier Foundation and other civil liberties groups have withdrawn their support for the measure. The House is expected to vote on the revised bill on May 22.
Two weeks ago, two House panels - Judiciary and the Permanent Select Committee on Intelligence - unanimously approved the USA Freedom Act (see 2nd Panel Oks Limits on Bulk Collection). However, this week Republican leaders, with the blessing of the Obama White House, amended the bill in the House Rules Committee, redefining the phrase "specific selection term," which describes and limits who or what the NSA is allowed to surveil.
In the original bill, the phrase was defined as "a term used to uniquely describe a person, entity or account." But in the substitute version, the phrase is defined as a "discrete term, such as a term specifically identifying a person, entity, account, address or device, used by the government to limit the scope of information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the government."
Harley Geiger, senior counsel at the Center for Democracy and Technology, says the new definition is abstruse and raises question of what the legislation would authorize and prohibit. "It's deliberately ambiguous and open-ended," Geiger says.
He says ambiguity alone isn't necessarily problematic if the government did not have a track record of creatively interpreting statutory language to broaden its surveillance activities.
The Electronic Frontier Foundation, in a statement, says the original definition was imperfect, but acceptable. "The new version not only adds the undefined words 'address' and 'device,' but makes the list of potential selection terms open-ended by using the term 'such as,'" the foundation statement says. "Congress has been clear that it wishes to end bulk collection, but given the government's history of twisted legal interpretations, this language can't be relied on to protect our freedoms."
Lawmakers wrote the USA Freedom Act in response to the leaks from former National Security Agency contractor Edward Snowden that revealed that the NSA obtained classified court orders to gather logs of phone calls made by Americans (see NSA's Prism: Balance Security, Privacy).
A secret court had interpreted existing law as allowing the NSA to collect phone calling records systematically to seek out associates of terrorism suspects. The USA Freedom Act would allow the agency to obtain only the calling records of people up to two links from a suspect.
White House Statement
In a May 21 White House statement, the administration says it strongly supports the revisions approved by the House Republican leaders, contending the measure balances the needs of intelligence and law enforcement professionals with individual privacy. The White House statement did not address the civil libertarians' objections to the new language. But aides familiar with the White House negotiations with lawmakers told the New York Times that the FBI wanted the change so it could continue to obtain business records in ordinary investigative ways, such as obtaining all records of hotel guests.
"Overall," the administration statement says, "the bill's significant reforms would provide the public greater confidence in our programs and the checks and balances in the system. The administration supports swift House passage of the USA Freedom Act, and urges the Senate to follow suit."
But the fate of the bill in the Senate is uncertain. At an FBI oversight hearing on Wednesday, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said that he's pleased to see the House is poised to vote on the revised bill. "However, I remain concerned that some important reforms were removed," he said, directing his remarks to FBI Director James Comey. "I hope that you will work with me as the Senate takes up this important issue."
The Electronic Frontier Foundation is counting on Leahy to strengthen the bill, saying: "We are encouraged by Sen. Leahy's commitment to continue with the more comprehensive version of the USA Freedom Act over the summer and look forward to working towards NSA reform in the Senate."