Is Congress Finally Going to Reform the NSA?
More than a year after Edward Snowden first revealed the extent of the NSA's mass surveillance programs, the Senate is finally voting on a bill to curb the agency's sweeping spying powers.
The Senate is expected to hold a vote Tuesday evening on the USA Freedom Act, a bill that would end the National Security Agency's bulk collection of U.S. citizens' telephone metadata. The bill, introduced by Senate Judiciary Committee chairman Patrick Leahy, would also strengthen transparency and oversight of the Foreign Intelligence Surveillance (FISA) Court and ban the NSA from undermining common encryption standards, among other provisions.
It has taken more than a year since Edward Snowden first leaked evidence of the NSA's massive surveillance apparatus for legislators to craft a reform bill that was palatable to both privacy advocates and the Obama administration, and their efforts will now face a crucial test that will decide the future of major intelligence reform in the US.
The USA Freedom Act would scrap the NSA's massive database of domestic phone records and so-called "back door" access to Americans' communications. That information would remain with telecommunications companies, which would no longer be barred from reporting estimates of the number of FISA orders they receive and users affected. The bill would also make redacted FISA Court records public and allow an independent privacy advocate to argue before the FISA Court. However, the NSA and FBI will still be able to obtain domestic phone records through court orders, and the international communications would still be subject to warrantless surveillance under Section 702 and Executive Order 12333.
In a statement released late Monday, the White House said the administration "strongly supports" passage of the bill because it "strengthens the FISA's privacy and civil liberties protections, while preserving essential authorities that our intelligence and law enforcement professionals need."
Despite some reservations, tech companies and advocacy groups such as the Electronic Frontier Foundation have also lined up in support of the bill. A coalition of tech companies—including Facebook, Google, Apple, LinkedIn, Microsoft, Twitter, AOL, Dropbox, Evernote, and Yahoo!—released a letter Monday urging the Senate to pass the legislation.The legislation even spurred a rare joint op-ed from the ACLU and National Rifle Association.
"While there is much the Senate shouldn't or needn't do during the 'lame-duck' session, the USA Freedom Act is badly needed legislation that has bipartisan support and will protect the rights of all Americans," the NRA's Chris Cox and the ACLU's Laura Murphy wrote in the Washington Times. "The NRA and the ACLU, along with many members of Congress from both parties, support these reforms and they should be enacted, without weakening amendments, by the Senate and sent to the White House as soon as possible."
The Senate Judiciary Committee has been counting votes, and a committee aide told VICE that Tuesday's vote will likely be close. The bill needs a fair amount of Republican crossover votes to pass, and only four GOP Senators—Ted Cruz of Texas, Dean Heller of Nevada, Mike Lee of Utah, and Lisa Murkowski of Alaska—signed on to cosponsor the legislation.
"One of the most troubling things we have seen in recent years is an expansion of federal government authority into surveilling American citizens," Cruz said during a speech in Austin last week. "I am proud to be a co-sponsor of the USA Freedom Act."
But the bill still has some strong opposition within the GOP. In a speech from the Senate floor Tuesday morning, Republican Leader Mitch McConnell said he was "strongly opposed" to the legislation. "This is the worst possible time to be tying our hands behind our backs," McConnell said.
His concerns echo those of hawkish Bush-era officials. In a Wall Street Journal op-ed Tuesday, former CIA Director Michael Hayden and former Attorney General Michael Mukasey said the bill would institute a "cumbersome and untried process" into the FISA Court. Congressional intelligence committees, the FISA Court, "and everyone else at the NSA live in constant dread of failing to detect a terrorist attack," the two former Bush officials, who helped build the post-9/11 surveillance apparatus. "Nonetheless, the sponsors of the USA Freedom Act prefer the counsel of hypothetical fears to the logic of concrete realities."
There are also detractors on the opposite side. Significantly, Sen. Rand Paul, one of the most libertarian members of the Republican caucus and a vocal critic of the NSA's spying tactics, has said he will oppose the bill because he believes it's too weak, and because it includes an extension of the PATRIOT Act. And Marcy Wheeler, a prominent independent journalist covering national security, wrote that she opposes the bill because its limits on the NSA are overstated, its key provisions are unclear and its transparency requirements "are bullshit."
Tuesday's vote is not on whether to pass the bill, but rather a procedural vote to decide whether or not to proceed with debate on it. If the bill advances, the next challenge for supporters will be the amendment process.
Politico reported Monday that if the Senate advances the legislation, Majority Leader Harry Reid will not use a procedural move to block consideration of amendments to the legislation. This will open an opportunity for legislators to water down the bill or, as is likely in the case of Paul, beef it up.
The House passed an NSA reform bill in May, but technology groups pulled their support for it after privacy protections in the bill were watered down at the last minute.