Silicon Valley sees hope in battle against NSA

Tech companies and civil liberties groups are becoming more optimistic that the Senate will take major steps to rein in the National Security Agency this year.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is expected to introduce a bill Tuesday that would prevent the NSA from obtaining broad swaths of information about people’s phone calls and also create a stronger advocate for civil liberties on the secretive federal court that oversees surveillance activities, which currently only hears arguments from the government.

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Leahy’s bill also adds new provisions on transparency that would represent big wins for tech firms. It would allow tech companies to disclose more details about the government requests for data they receive, and require the surveillance court to issue clear summaries of how its opinions would impact civil liberties.

Tech firms large and small have complained that customers are wary of them because of the revelations about the NSA’s surveillance of their systems. Analysts say those worries translate into billions of dollars in lost profits. 

“This bill will help us in dealing with the problems that we are facing overseas,” one industry lobbyist said.

“This we will be able to send back to foreign governments to say ‘We are very clear now on how the government goes about the practice of data collection as it relates to us, and proposals to punish or discriminate against U.S. companies really aren’t warranted,’” he added.

Tech firms say the Leahy bill, if it is approved by the Senate, would be a big win after a setback in the House, which approved a bill that disappointed them. 

The Judiciary Committee chairman has spent months negotiating with other lawmakers, outside groups, tech firms and the Obama administration to craft a bill that could pass muster with all of them.

Early indications seem to be largely positive.

A National Security Council spokesman this week said the administration has been “encouraged by the recent progress in the Senate,” though there are still “additional steps” to take before the legislation becomes law.

“A lot of folks on the Hill and elsewhere think if this has a real shot and it can go someplace, it would be meaningful reform,” said one privacy organization lobbyist who asked not to be named. “It wouldn’t be like the House bill where people were like, ‘this is just pretending to solve things.’” 

The House bill, which was approved in May, ended the NSA’s bulk collection of records about people’s phone calls and required government agents get the data from phone companies after obtaining a court order.

Privacy advocates raised alarms, however, that language added before the bill came to a vote would allow the government to search companies’ records for a broad swath of records, such as everyone in a certain ZIP code or every Verizon customer.

The draft bill in the Senate would limit those searches, people who had read it confirmed to The Hill, to make officials’ searches much more narrow.

So far, the main tensions surrounding NSA reform have been between different committees, and haven’t been on party lines. So the opposition to Leahy’s bill is likely to come from more hawkish members of the Senate Intelligence Committee in both parties. 

One point of contention could be whether to mandate that phone companies hold onto customers’ data for a certain amount of time. Current regulations require phone companies keep “billing information” for 18 months, but that “does not include, necessarily (or even actually) the records of each call,” a Senate staffer told The Hill.

Currently, the NSA holds onto people’s phone records for five years. In a hearing earlier this year, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and other lawmakers seemed to argue that the law should extend the amount of time companies have to hold onto subscribers’ information so that officials have the ability to search for older records.

Leahy’s draft bill does not contain a mandate on retaining data, however, which could disappoint those lawmakers.

A spokesman for Feinstein said that the chairwoman is still reviewing the bill and could not comment on it.

Even if the bill does win enough supporters to move through the Senate, timing could still be an obstacle.

“The challenges for us right now are timing and just getting this thing to move for all the other external factors — no different than any other bill — that cause things to die slow and painful deaths in the Senate,” said the tech lobbyist, who doubted the bill could hit the floor before Congress leaves town for a month-long recess in August.

That could set up a race against the clock.

Aside from the midterm election in November, lawmakers are also facing a jam-packed calendar that includes dealing with the crisis of unaccompanied minors at the border, highway funding and other critical measures. The NSA reform bill could get pushed back for months.

Still, the high-profile issue is likely to find some time on the floor, said Sen. Chuck Grassley (Iowa), the top Republican on the Judiciary Committee.

“If it isn’t handled now it’s going to be handled in the lame-duck session,” Grassley said this week.

“I don’t think we’ve got time to handle it now," he added.

— This story was updated on July 28 at 12:21 p.m.