Congress Will Vote on an NSA Reform Bill That Won't Reform Much of Anything

But at least it beats the alternative, which was a civil liberties nightmare.

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May 8 2014, 9:54pm
Protesters hit DC late last year to oppose NSA surveillance. Image: Jason Koebler

What do you end up with when you take a strong NSA reform bill championed by just about every civil liberties group and combine it with a widely derided one that threatened to expand the NSA’s power? A watered-down piece of legislation that takes baby steps toward limiting surveillance but still leaves some gaping loopholes that lets the government maintain the status quo. 

But baby steps are better than nothing—civil liberties groups are still cautiously endorsing Rep. Jim Sensenbrenner’s (R-Wi.) USA Freedom Act, the first legislation Congress has considered that would seriously scale back the NSA’s mass surveillance capabilities. 

And, most importantly, it means that the House will most likely not consider Rep. Mike Rogers’ FISA Transparency and Modernization Act, a civil liberties nightmare that would have given the NSA subpoena power over records without requiring judicial authority—a move that would have actually expanded the powers of the NSA. 

Rogers’ (R-Mi.) bill was considered the main competition to the Freedom Act, but after the latter was unanimously passed by the House Judiciary Committee yesterday—and was passed today by the Intelligence Committee Rogers heads up—it looks like that one is dead.

It’s not all good news, however. In order to push the bill out of committee, some of the key provisions in the Freedom Act that made it so attractive to civil liberties groups in the first place were stripped out during the Judiciary Committee’s markup yesterday. Other amendments that had been pushed for, meanwhile, were left out.

In the “good” column, it prohibits bulk collection of all types of data. It only allows the NSA and all other surveillance groups to collect call data records when it has a “reasonable articulable suspicion” that the records are “associated with a foreign power or an agent of a foreign power.” It prohibits the government from intentionally targeting Americans.

In the decidedly bad column, amendments that would have closed a loophole in a part of the FISA bill known as Section 702, the part that allowed backdoor wiretapping of American citizens without a warrant, have been left in. That’s the loophole that has famously allowed the NSA to collect data about Americans without “targeting” them—it’s how the NSA used FISA, a law that’s supposed to only collect data about “foreign persons” to spy on Americans. 

Also bad: The Freedom Act doesn’t make the surveillance process any more transparent, which is how you end up with reports such as these, where the FISA court’s “transparency reports” contain almost no usable information about what sort of latitude it’s giving the federal government.

Finally, an amendment that would have created a “special advocate” in the FISA Court to argue against the government in certain application for wiretap permission was shot down. 

“We are deeply troubled that much-needed reforms to shine a light on surveillance activities were not considered by House Judiciary yesterday," Project on Government Oversight Executive Director Danielle Brian said in a statement. "We cannot expect this bill to protect privacy and civil liberties while the public and Congress continue to be in the dark about the policies in practice.”

What you end up with is a bill that civil liberty groups prefer over the alternatives (and over no legislation at all), but one that doesn’t meaningfully limit the power of the NSA. And that’s how you end up with a cadre of statements saying this is a "good start" or that there's still a "long road ahead" from the most outspoken groups that have been fighting this fight since long before Edward Snowden disclosed the extent of NSA surveillance. 

It’s better than nothing, but it’s not what civil liberties groups pushed for in the first place.

The bill will likely be voted on next week. Already, some in the Senate have said that they’ll push to strengthen the bill there.