A year ago, it would have been unimaginable for the House to pass a bill to curtail the government’s abusive surveillance practices. The documents leaked by Edward Snowden, however, finally shocked lawmakers from both parties into action, producing promises that they would stop the government from collecting the telephone data of ordinary Americans and would bring greater transparency to its domestic spying programs.
Unfortunately, the bill passed by the House on Thursday falls far short of those promises, and does not live up to its title, the USA Freedom Act. Because of last-minute pressure from a recalcitrant Obama administration, the bill contains loopholes that dilute the strong restrictions in an earlier version, potentially allowing the spy agencies to continue much of their phone-data collection.
Still, the bill finally begins to reverse the trend of reducing civil liberties in the name of fighting terrorism, as embodied in various versions of the Patriot Act. And if the Senate fixes its flaws, it could start to rebuild confidence that Washington will get the balance right.
The bill moves the collection of phone data from the government to the phone companies, where it belongs. It limits the ability of the National Security Agency to request calling records more than two contacts away from a terrorism suspect, rather than allowing it to go through the records of anyone even tangentially connected to a suspect. It requires that opinions or orders from the Foreign Intelligence Surveillance Court be made public, unless they would clearly expose intelligence sources or harm national security. Even then, summaries of the opinions would have to be provided.
An earlier version of the bill, approved by two committees, went much farther. It said bulk collection of records would be limited to a specific "person, entity, or account," forcing intelligence agents to tell the phone companies exactly whose records they wanted and ending fishing expeditions. But after those committee votes, administration officials went behind closed doors and demanded changes. The new bill adds more search terms, and makes it clear that the list is no longer limited.
Privacy advocates said the NSA could use the changed language to demand records for an entire ZIP code, state or region. Administration officials say they don’t intend to do that, but their record of exploiting legal loopholes doesn’t provide much confidence. "If we leave any ambiguity at all," said Rep. Zoe Lofgren, D-Calif., "we have learned that the intelligence community will drive a truck through that ambiguity." The bill, she said, will not actually end bulk collection.
The changes demanded by the White House would also weaken the provision allowing Internet companies to report how often the government made requests of their data. (Most of those companies now say they can no longer support the bill.) And the role of declassifying court decisions would go from the attorney general to the director of national intelligence, the last person who should do it.
Several leading senators have said they want a stronger bill, and may do a better job of resisting the administration. Sen. Patrick Leahy, the chairman of the Judiciary Committee, wants a strong advocate for civil liberties to argue in the surveillance court (as opposed to simply filing briefs, as the current bill allows) along with other reforms. There is still time for Congress to show that it is serious about reining in the nation’s runaway spies.
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