9 May 2014, NYT: House Panel Advances Bill on N.S.A. Collection of Phone Data
7 May 2014, NYT: Rival House Bills Aim to Rein In N.S.A. Phone Data Program
15 November 2013, NYT: C.I.A. Collects Global Data on Transfers of Money
May 20, 2014
Changes to Surveillance Bill Stoke Anger
By Charlie Savage
WASHINGTON -- Leaders of both parties in the House of Representatives, at the Obama administration's request, have changed a surveillance overhaul bill that restricts the power of the government to obtain Americans' records in bulk.
A revised version of the bill [1] was unveiled on Tuesday, and the House may vote on it this week.
Several civil liberties groups that had backed a previous version argued that the changes weakened the limits in a way that leaves the door open for the government to obtain enormous volumes of records. They said they were withdrawing their support.
Lawmakers drafted the bill, the U.S.A. Freedom Act, in response to the revelation that the National Security Agency is obtaining classified court orders to systematically gather logs of Americans' phone calls. A previous version of the bill [2] unanimously passed the House Judiciary [3] and Intelligence [4] Committees. But the administration asked for changes before the House Rules Committee [5] approved sending it to the House floor.
The request set off an intense bout of closed-door negotiations between leading lawmakers of both parties and executive branch officials led by Robert S. Litt, the general counsel for the Office of the Director of National Intelligence, congressional aides said. The talks stretched to midnight on Monday and resumed Tuesday morning.
The bill's centerpiece focuses on the Foreign Intelligence Surveillance Court's power, provided under a provision of the Patriot Act, to issue orders allowing the government to obtain business records deemed relevant to a national security investigation.
The court secretly interpreted that provision as allowing the N.S.A. to systematically collect calling records for the purpose of hunting for hidden associates of terrorism suspects. The bill instead would allow the agency to obtain only the calling records of people up to two links from a suspect, a change President Obama has endorsed.
But negotiations over the bill have proved complex because lawmakers like its chief sponsor, Representative Jim Sensenbrenner, Republican of Wisconsin, wanted to end any bulk collection of other types of records as well.
Although the administration declassified the existence of the call log program, it has not officially acknowledged other uses, including a C.I.A. program that gathers bulk records about global financial transfers from companies like Western Union. [6]
The bill seeks to limit bulk collection more broadly by saying that such court orders -- as well as administrative subpoenas for records called "national security letters" -- may be used only to obtain records associated with a "specific selection term."
The negotiations focused on how to define that crucial phrase. An earlier version of the bill, unanimously approved by the House Judiciary and Intelligence Committees, defined it as "a term used to uniquely describe a person, entity or account."
The Obama administration persuaded House leaders to instead define it as "a discrete term" the government would use and one that would "limit the scope of the information or tangible things sought."
Aides familiar with the negotiations said lawmakers were told that the F.B.I. wanted the change so it could continue to obtain business records in ordinary investigative ways, like obtaining all records of hotel guests.
But Harley Geiger, a senior counsel for the Center for Democracy and Technology, said the new language would allow the government to obtain orders for vast amounts of records as long as there was some kind of limit: all records from a single ZIP code, for instance.
"The government has shown remarkable capacity to creatively interpret terms that appeared clear, like 'relevant,' and this definition is ambiguous enough that it allows, if not entire-population-scale collection, large-scale collection," Mr. Geiger said.
A senior administration official insisted that the bill still "bans all bulk collection" and said the changes were intended only to prevent "any unintended consequences for routine individual investigations."
The official continued, "There was no effort to soften the ban on bulk collection."
Some congressional aides also defended the bill, saying that even with the changes it still substantially improved the legal landscape from a privacy and civil liberties perspective. And some changes made it stronger, they said.
The bill requires that significant rulings by the Foreign Intelligence Surveillance Court be made public, at least in summary form. One new change in the bill says that a ruling interpreting the key phrase "specific selection term" would count under that disclosure requirement.
Another change requires the N.S.A. to destroy Americans' call records after an unspecified number of years, which it left up to the executive branch and court to determine. In the previous version of the legislation, the agency would have effectively held onto them in perpetuity.
[1] https://www.documentcloud.org/documents/1164932-113h3361-flr-ans-001-xml.html
[2] http://judiciary.house.gov/_cache/files/ec687f8f-3b69-43b2-b5f6-bcf234457e7d/fisa-anos-003-xml.pdf