Bill would rein in NSA's bulk data collection

A bipartisan group of legislators representing the libertarian right and the liberal left are teaming up on a bill that would end the ability of the National Security Administration to collect bulk metadata on the phone calls and emails of American citizens.

Rep. James Sensenbrenner (R-Wis.), House Judiciary ranking Democrat John Conyers of Michigan and Senate Judiciary Chairman Patrick Leahy (D-Vt.) developed the legislation, dubbed the USA Freedom Act. The measure would rewrite Section 215 of the 2001 Patriot Act and relevant portions of the Foreign Intelligence Surveillance Act to require spy agencies to adhere to a well-defined standard of relevance before ordering the collection of information from private companies.

The new restrictions are expressly intended to cramp the NSA's avowed investigative practice of assembling as much communications information as possible and using advanced data analytics and human investigators to comb for possible links to detect hostile activity.

The metadata collection was first exposed by news sources reporting on documents leaked by former NSA contractor Edward Snowden. In a declassified court ruling, the government acknowledged the collection of "telephony metadata," including originating phone number, recipient numbers, routing information across networks, duration of call, and mobile device identification numbers. This practice runs contrary to the intent of Congress when it reauthorized the Patriot Act in 2006, Sensenbrenner said at an Oct. 9 event at the Cato Institute, a libertarian think tank in Washington, D.C.

"The government claims it needs the haystack to find the needle. But gathering the haystack and making it larger without knowledge that it contains the needle is precisely what the relevance standard was supposed to prevent," said Sensenbrenner, author of the original version of the Patriot Act.

The USA Freedom Act, which is short for the unwieldy title of "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection and Online Monitoring Act," takes a similar proposal by Rep. Justin Amash (R-Mich.) and Conyers a step further. The Amash amendment, which the House narrowly rejected in July, would have ended bulk collection only for the one year period governed by an appropriations bill. The Sensenbrenner bill would rewrite the underlying statute.

The new legislation would also change the way secret FISA courts go about approving requests for data collection by creating an Office of Special Advocate to address privacy concerns. Sensenbrenner said the measure would throw "the rubber stamp the FISA court has given to what the NSA and Justice Department have requested into the trash heap of history."

Under the proposal, private companies tasked with data requests on users and customers would be able to speak publicly about the number of requests they received and complied with.

Efforts to change the bulk collection rules face headwinds in Congress, according to Sensenbrenner and Sen. Ron Wyden, who also spoke at the Cato event.

"We know that the defenders of business as usual are adopting the language of reform, but continuing to argue that Congress should only make very small changes, rather than big, meaningful ones," said Wyden, who cautioned against writing rules for bulk data collection into law.

"Putting a Congressional imprimatur on invading the rights of law-abiding Americans is a mistake that Congress would regret," the Oregon Democrat said, arguing that it would justify the collection of other types of records under the Patriot Act.

Sensenbrenner expressed a similar caution in an Oct. 8 letter to Attorney General Eric Holder. "The strained legal argument the Obama administration relies on for [metadata collection] authority would seem to justify the dragnet collection of other types of personal data as well," he wrote.

Sensenbrenner called out the chairs of the Intelligence Committees in both chambers, saying that proposals by Rep. Mike Rogers (R-Mich.) and Sen. Dianne Feinstein (D-Calif.) would serve as a "fig leaf for the intelligence community to do what it wants to continue to do."

Feinstein, however, is generally supportive of the NSA program. In a recent hearing of the Senate Judiciary Committee, Feinstein said that the bulk metadata collection programs and other intelligence community activities would give U.S. spies an opportunity to detect another 9/11-style plot. "I will do everything I can to prevent this program from being canceled out," she said.

Legislation by the two committee chairs would codify NSA's bulk collection authority while placing restrictions on how the information is accessed and adding transparency provisions.

While House and Senate leaders appear to be unified in opposition to a rewrite of the Patriot Act, members on both sides of the aisle in both chambers are advocating change. In addition to the Sensenbrenner bill, a group including Sens. Rand Paul (R-Ky.), Richard Blumenthal (D-Conn.) and others is expected propose legislation to end bulk collection.