No clear path to NSA reform on Hill

President Obama’s proposal to end government collection of Americans’ phone records is expected to face a rocky path on Capitol Hill as lawmakers and pressure groups disagree on details and the scope of NSA reform.

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The White House proposal, unveiled last week after months of lobbying from spy agency leaders, tech companies and privacy advocates, is sure to come under fire as it heads to Congress.

“I think working through all those things, and given the president’s general reluctance to weigh in very heavily on this issue, means that things are going to be tough to move forward,” said Gary Schmitt, co-director of the conservative American Enterprise Institute’s security studies center.

Lawmakers’ attempt to expand or edit the White House’s proposal “could become a Christmas tree with everybody’s desire to pin all kinds of bells and whistles on the effort," he added.

The NSA program collects records about the numbers people call as well as the length and frequency of their calls but not the call content.

Obama wants to end the government’s collection and storage of that data. Instead, agents would be able to search the records of private phone companies, which already keep the information for billing and other regulatory purposes.

Lawmakers in Congress have been generally supportive of that idea. They disagree, however, on precisely how agents can search for people’s records and the future of the NSA's other surveillance programs.

“Although this proposal represents a landmark shift in the debate, by only addressing the issue of bulk collection of phone records under the Patriot Act, it’s focusing only on one symptom of the NSA’s overreach rather than promising a cure for the much broader problem of bulk data collection,” said Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute.

“Any proposal to address the problem of bulk data is fatally incomplete if it doesn’t prohibit bulk collection of any kind of record under any of the NSA’s different legal authorities,” he said.

Civil liberties advocates are pushing for the White House proposal to be part of an expanded piece of legislation like the USA Freedom Act, from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Rep. James Sensenbrenner Jr. (R-Wis.).

“I’m not saying we have to pass exactly the bill as drafted, but it’s a template on which we should draft the bill,” Rep. Jerrold Nadler (D-N.Y.), one of the more than 140 House co-sponsors of the USA Freedom Act, told The Hill on Friday.

Defenders of the NSA programs have said that the Leahy-Sensenbrenner bill would devastate the country’s intelligence systems.

The legislation “makes our country less safe,” said Rep. Dutch Ruppersberger (D-Md.), ranking member of the House Intelligence Committee.

Last week, Ruppersberger and Intelligence Committee Chairman Mike Rogers (R-Mich.) released an NSA reform bill of their own. The FISA Transparency and Modernization Act would end the NSA’s collection of phone records but not require a court order before agents could search for individual numbers. The lawmakers said obtaining a court order would slow down agents tracking terrorist threats.

Civil liberties groups have rejected that legislation as a nonstarter.

A big factor affecting the outcome of the president’s proposal is who gets authority.

The Judiciary committees have tended to have jurisdiction over foreign intelligence matters, but the House Intelligence Committee was given primary authority over its leaders’ bill, a decision that incensed Nadler.

“Frankly, from a substantive point of view, they seem perfectly happy with the existing program, which is way broad and way beyond what we thought we were authorizing back in 2002 and again in 2011,” he said.

Leaders of the House Judiciary panel asserted their authority over the issue on Friday and said in a joint statement that they would “strengthen some of the ideas put forward by the president.”

“What bill actually makes it to the floor and makes it to a markup, and what path it takes, whether through Intel or Judiciary, says a lot about how we’re going to get this done,” said Nathan White, a lobbyist for the left-leaning activist group Demand Progress.

Another potential stumbling block could be telecommunications companies, which have asked for more details about the president’s proposal and expressed a reticence to be seen as an agent of the government.

“I think there’s great skepticism in the private sector about having private companies become surrogate, quasi-governmental agents in the gathering and keeping of data,” Ed Black, president of the Computer and Communications Industry Association said last week. The trade group counts Sprint and T-Mobile among its members.

On its face, the White House proposal does not make any new demands on telecom firms, but analysts have worried that, depending on final language, the NSA could get new powers to place extra requirements on phone companies.

Verizon Executive Vice President Randal Milch warned in a company blog post that the law should not force companies “to store data for longer than, or in formats that differ from, what they already do for business purposes."

Despite the opposing viewpoints, Congress has a deadline on the horizon.

The phone record program is set to expire in June without congressional reauthorization, a deadline analysts say could compel lawmakers to get to work sooner rather than later.

Critics are pledging to move quickly.

"Every day that you have bulk collection in America means there's a little less liberty for law-abiding Americans," Sen. Ron Wyden (D-Ore.) said.

— This report was updated at 9:39 a.m.

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