House NSA Reform Bill is Imperfect But Could be Made Much Worse

A bill passed by the House last week to reform NSA’s metadata phone records collection program – the USA Freedom Act — is far from perfect and will impose limits on this counterterrorism program that will reduce its effectiveness. Nevertheless, it is urgent that the Senate pass this bill in its current form and resist pressure to weaken it from the news media and left-wing privacy advocates. While many NSA supporters are unhappy about the text of the House bill, it is a compromise reflecting the reality that regardless of the merits and capabilities of the metadata program, it has been so damaged by fear-mongering attacks by the press and some politicians that it cannot continue in its current form.

Controversy over the NSA metadata collection program was sparked by leaks of classified documents to the news media by former NSA technician Edward Snowden. The metadata program under which NSA collects telephone records – not the contents of phone calls – has been deemed legal in about 35 out of 37 legal challenges. One district judge ruled the program was illegal and a violation of the fourth amendment last December. Another judge issued a ruling strongly supporting the program a few weeks later. While the Supreme Court will ultimately rule on recent contradictory court decisions on this program, the Court on April 7 declined to take on this issue, instead allowing it to first work its way through lower courts.

This article follows-up on the Center for Security Policy’s prior publications on NSA reforms precipitated by the Snowden leaks. These include:

Center for Security Policy Issues Rebuttal of Obama Panel’s NSA Reform Recommendations (January 13, 2014)

Senior National Security, Intelligence Professionals Warn President Obama Against Damaging US Collection Sources and Methods (January 17, 2014)

New Center Study Warns President Obama’s NSA Reforms Jeopardize National Security (January 27, 2014)

Critics of the metadata program have insisted it is a violation of the personal privacy rights of American and that there is no evidence this program helped protect the United States from terrorist attacks. Senior intelligence officials dispute such claims and point out that the metadata program has been carefully overseen by the courts and the intelligence oversight committees. Senator Dianne Feinstein (D-California), the Chairwoman of the Senate Intelligence Committee, has defended the metadata program and said during a January 14, 2014 Judiciary Committee hearing that this program helped stop terrorist plots to bomb the New York City subway, the New York stock exchange, and a Danish newspaper.

House Intelligence Committee members hoped to pass legislation to address the public’s concerns about the metadata program by tightening the program without weakening it. When this became politically impossible, they merged their bill with a House Judiciary Committee bill, producing legislation that weakens the program but allows it to continue.

Under the USA Reform Act, phone companies, not NSA, will maintain metadata databases. This data will be held by phone companies for 18 months versus the five years it is currently held by NSA. Instead of the current arrangement under which the Foreign Intelligence Surveillance Act Court issues NSA with 90-day “basket” court orders to search the metadata database, NSA will now need to obtain a court order every time it wants to query the database on a specific phone number. In emergencies, NSA will be permitted access to the metadata database for seven days before getting court approval.

Congressman Steve King (R-Iowa) has criticized the USA Freedom Act for the damage he believes it will do to the metadata program’s effectiveness as a counterterrorism tool and hopes to amend the bill. King believes the bill’s requirement that NSA obtain court orders for the metadata program on a case-by-case basis will significantly hamper the program. He also believes having phone companies retain phone metadata could create real threats to the privacy of Americans because a larger set of non-U.S. government personnel will be handing this data in several companies. I agree with Mr King but I regret that there does not appear to be enough political support in the House for his amendment to pass.

The House passed the USA Freedom Act by a vote of 303-to-121 with a majority of both Republican and Democratic members in support. However, privacy advocates, technology companies, the New York Times and many House members oppose it, claiming the bill dilutes stronger language from an earlier version, requires insufficient “transparency” of the metadata program, and allows it to essentially operate as it does today. Major House critics of the bill include Justin Amash (R-Michigan) and Zoe Lofgren (D-California) who are demanding the bill be substantially revised to either shut down the NSA metadata program or to place so many restrictions on the program that NSA would find it impossible to use.

For example, Lofgren wants to amend the bill so NSA would not only need a court order to query the phone records of an American citizen but would also need to certify that the American in question is the target of an active counterintelligence investigation. This is an impossible standard that would prevent NSA from pursuing huge numbers of terrorist leads. Her amendment would change the bill’s current language allowing NSA to query the phone records of Americans if they are reasonably suspected of having links to an agent of a foreign power.

While President Obama has a mixed record in defending NSA against the onslaught of criticism sparked by the Snowden leaks, his administration deserves credit for forcing the House to make important last-minute changes to the USA Freedom Act. This includes loosening restrictions on how NSA can query the metadata database and restricting when companies can reveal government requests for this data. Obama officials also arranged for declassification decisions to be made by the Director of National Intelligence, not the Attorney General, and to drop language to create an independent advocate for FISA court hearings.

These changes fall short of what Congressman King is proposing but they probably pushed the bill as far as possible without endangering its bipartisan support in the House. The USA Freedom Act now goes to the Senate where Senate Majority Leader Harry Reid has asked Senate Intelligence Chairwoman Dianne Feinstein and Judiciary Committee Chairman Patrick Leahy to review the bill.

Senator Feinstein, who has proposed narrower restrictions to the metadata program, said she is open to the USA Freedom Act. Given the Obama administration’s support of the bill, she is likely to push through an identical version from the Senate Intelligence Committee.

The bill faces trouble from Senator Leahy who has said the final version passed by the House omits important reforms from a previous version that he plans to restore. Leahy will be joined by Ron Wyden (D-Oregon), Martin Heinrich (D-New Mexico) and Mark Udall (D-Colorado), three far-left senators who have been fighting a losing battle in the Democrat-controlled Intelligence Committee to gut the metadata program.

Teaming up with the news media and privacy advocates, who have already begun a campaign against the USA Freedom Act, Leahy will push hard to add language to a Senate version that will essentially end the NSA metadata program.

The Senate vote on NSA reform will come down to the loyalty of Democratic senators to the president and Senator Feinstein’s ability to counter Leahy. If Leahy succeeds in passing a Senate version with major changes, he will upset delicate compromises that led to the House bill, possibly causing it to collapse. Given the continuing controversy over NSA collection and the upcoming congressional elections, this could result in a new bill closer to what Leahy wants that would put other damaging limitations on vital NSA collection programs.

Many NSA supporters are understandably disappointed with the House USA Freedom Act. However, due to the erosion of public support for the metadata program, I believe this bill is the only way to save it. It is therefore essential that Americans concerned about U.S. national security push for passage of this bill and call on Democratic and Republican senators to resist pressure to weaken it from the left-wing senators, the news media and privacy advocates.