Sens. Saxby Chambliss (R-GA) and Dianne Feinstein (D-CA), both supporters of the NSA’s privacy invasive surveillance program, sent out a press release touting the FISA Improvements Act as a measure that “increases privacy protections and public transparency of the National Security Agency call-records program.”
But what this measure would actually do, once you get past the fluff in the release, is legalize bulk data collection. They still want the haystack to find the needle, as Rep. James Sensenbrenner (R-WI) put it earlier this month.
The release states that the FISA Improvements Act ”[p]rohibits the collection of bulk communication records under Section 215 of the USA PATRIOT Act except under specific procedures and restrictions set forth in the bill.” It also says that the measure “[p]rohibits any review of bulk communication records acquired under Section 215 of the USA PATRIOT Act unless there is a ‘reasonable articulable suspicion’ of association with international terrorism.”
The wording there is tricky, but a reading of the bill shows that it authorizes the NSA to retain five years of data records per the Foreign Intelligence Surveillance Court (FISC) approval, though the intelligence agency would have to get permission from the Attorney General to view records more than three years old. The problem is that the FISC has largely rubber-stamped the bulk data collection programs. Moreover, there has been very little in terms of substantive congressional oversight, and it doesn’t seem that this bill changes that.
The release says that the measure “[p]rohibits the bulk collection of the content of communications under Section 215 of the USA PATRIOT Act.” Well, that hasn’t been a big part of the complaints about the NSA programs. In fact, some believe that metadata collection is more of a threat to privacy than the actual content of a phone call or a text message.
So, the bulk data collection programs remain in place, ostensibly authorized by statute for the first time. The FISA Improvements Act cannot be construed as reform; to even hint at that is blatantly misleading.
To this point, the Justice Department has relied on a broad interpretation of Section 215 as justification for the NSA bulk data collection program. Sensenbrenner, the primary sponsor of the PATRIOT Act, has blasted this interpretation of the anti-terrorism law, noting that this provision was never intended for such purposes.
“As the administration explains it, all of our phone records are relevant because the connections between individual data points are of potential value,” said Sensenbrenner at the Cato Institute. “But these private collections are only of value if they in some way relate to terrorism. To the extent that they don’t, the government has no right to collect them.”
There are measures that have been introduced that would substantively reform surveillance programs, among them are the Intelligence Oversight and Surveillance Reform Act, sponsored by Sen. Ron Wyden (D-OR), and the USA FREEDOM Act, sponsored by Sensenbrenner in the House and Sen. Patrick Leahy (D-VT) in the upper chamber.