It’s crunch time for reining in the National Security Agency.
If lawmakers are going to finalize the USA Freedom Act to reform government surveillance this year, privacy advocates warn they need to pick up the pace this month.
“I think there’s a lot of pressure on the Judiciary Committee to act on USA Freedom before the August recess,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology.
The Senate will return after the holiday weekend for four straight weeks of work in Washington before the month-long August recess. After that, government funding and the November elections are likely to take center stage, clouding the outlook for any controversial measures on Capitol Hill.
The NSA reform bill passed the House in May, after sailing through both the Judiciary and Intelligence Committees. In the Senate, however, there has been little action, more than a year after the disclosures from Edward Snowden thrust the issue into the limelight.
Senators on the Intelligence Committee raised some concerns with the bill in a June hearing, but the Judiciary Committee, which has primary authority, has yet to debate the bill or schedule a vote.
There will be pressure on Judiciary Chairman Patrick Leahy (D-Vt.), who is also the lead sponsor of the bill in the Senate. Leahy finds himself in a tighter spot than his House colleagues.
Eleventh-hour changes to the House bill caused many advocates to fear that it had been watered down to the point of being toothless. Privacy groups and technology companies dropped their support and have threatened to openly oppose the legislation unless “substantial improvements” are made in the Senate version.
That set up a standoff with reformers such as Leahy, fellow Sens. Ron Wyden (D-Ore.), and Mark Udall (D-Colo.) and others pushing for a tougher version of the bill pitted against opponents such as Intelligence Chairwoman Dianne Feinstein (D-Calif.), ranking member Saxby Chambliss (R-Ga.) and Sen. Jay Rockefeller (D-W.Va.), who worry that the compromises go too far.
The USA Freedom Act would end the NSA’s bulk collection of information about Americans’ phone calls and allow agents to search private companies’ records only after obtaining a court order.
Critics of the compromise bill, however, fear that overly broad “selection terms” would allow officials to include large swaths of the population in their searches, such as everyone in a certain ZIP code or every Verizon subscriber.
Defenders of the intelligence community say the searches help connect the dots between possible terrorists and were critical in stopping a 2009 plot to bomb the New York City subway.
Senators must also resolve a lingering debate over allowing the NSA to conduct so-called “backdoor” searches.
The bill originally included an additional measure preventing the NSA from conducting searches of Americans' text messages, emails and other communications through a section of the law only meant to target foreigners.
That provision was removed before the bill hit the floor in May, but the House overwhelmingly approved a similar measure as an amendment to the 2015 defense appropriations bill in June. That was seen as a boost for reformers.
A report last week from the federal government’s privacy watchdog over the foreign surveillance program, however, could blunt momentum for NSA reform.
The Privacy and Civil Liberties Oversight Board’s analysis concluded that the NSA surveillance program in question “appropriately focuses” on foreigners and did not recommend a legislative overhaul.
“It was disappointing that given the breadth of the program and given all the civil liberties implications of the program... that the report doesn’t acknowledge those things,” said Neema Singh Guliani, legislative counsel at the American Civil Liberties Union. “Hopefully that doesn’t stop the forward momentum because Congress has appeared to go forward without it.”
Reformist lawmakers and advocates said that the 293-123 June House vote should speak more clearly than the government report and are urging quick action on the Senate version.
“The government needs to do more to limit the incidental collection of this content [Americans’ communications] and should not be allowed to query the data without a court order,” Rep. James Sensenbrenner (R-Wis.), the House sponsor of the USA Freedom Act and original Patriot Act author, said in a statement.
“I believe the Fourth Amendment means what it says and there should be no shortcuts around it,” he added.
A Judiciary Committee spokesperson was unavailable to comment on the panel’s plans for July.
Whether or not the Senate tackles the “backdoor” searches with the current bill, the issue is likely to come up again in the future and could lead to further delays in the upper chamber.
The NSA’s phone records program needs congressional reauthorization by next summer. The tracking of foreigner’s communications, however, won’t need renewal until 2017.
“At some point it’s going to need to be addressed,” Nojeim said.
“I think it’s one of those issues that can hold up a reauthorization unless it’s favorably addressed.”