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Does revised House bill on bulk data collection achieve its mission?

May 22, 2014 at 6:10 PM EDT
By an overwhelming majority, the House of Representatives voted to end the National Security Agency’s bulk collection of American phone records. The U.S.A. Freedom Act was the first legislative response to NSA disclosures leaked by Edward Snowden. Hari Sreenivasan interviews Charlie Savage of The New York Times for a closer look at the bill and what it will -- or won’t -- change.
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GWEN IFILL: By an overwhelming majority, the House passed legislation today to end the National Security Agency’s bulk collection of American phone records. It was the first legislative response to the disclosures of NSA leaker Edward Snowden, but critics say the compromise measure was watered down.

Hari Sreenivasan has more.

HARI SREENIVASAN: The USA Freedom Act is Congress’ attempt to codify some proposals made by President Obama earlier this year after he received recommendations from a review board on the country’s surveillance program.

Joining us to discuss what’s in the bill, what’s not and what it all means is New York Times correspondent Charlie Savage.

So let’s talk about the legislation as it is, what’s in there, as it is it’s working its way through Congress.

CHARLIE SAVAGE, The New York Times: Sure.

So this bill, which was passed overwhelmingly, as you said, over 300 votes in the House today, and heads to the Senate, aims to reform surveillance law and the Foreign Intelligence Surveillance Act in several ways. But its centerpiece is to replace the program that has been systemically correcting records of Americans’ phone calls by going back to shortly after 9/11 and which was brought under the secret court orders in 2006.

And it does that by allowing the NSA to obtain records of callers up to two links removed from a terror suspect, but the bulk records would remain in the hands of phone companies. And, more controversy, it’s trying to ban the government from engaging in systematic bulk collection of records in a non-targeted way about Americans generally.

And it’s how to go about doing that that has led to this controversy over whether the bill really achieves its aims.

HARI SREENIVASAN: So, how a bill becomes a law is often a messy process. And why are there so many unhappy parties? We see tech companies unhappy. We see civil libertarians and privacy advocates all saying that this was watered down. What are they complaining about?

CHARLIE SAVAGE: Well, so there’s two different lines of thought.

One is, is this going to be the vehicle for all surveillance reforms? And if so, there’s all sorts of things that are not in it that people have been very interested in since the revelations from the leaks by Edward Snowden.

But, putting that aside, the specific focus is the way the bill goes about trying to block bulk collection. It says you can’t — the government can’t obtain records without a specific identifying term, basically. So, you can’t just say, I want all phone records. You have to say, I want the phone records associated with this term.

And so how you define that becomes very important. The earlier and some would say stronger version of the bill said that that term had to uniquely describe somebody or an entity or a thing. And the FBI apparently was — at least this is what we were being told — is the FBI said, that’s too restrictive. We need more flexibility for ordinary usage of obtaining records. Like, when we want to go get the names of all the guests in a particular hotel, we don’t know who we are looking for yet. That’s not bulk collection. But we can’t uniquely identify anyone either.

And so they changed the definition to, well, the request has to be limited in some way that isn’t really defined. And so a limit can be a very flexible term. And what the privacy groups and the industry groups are worried about is that behind closed doors, as has happened before, there will be creative interpretation of this term by the surveillance court, which only hears from the government, and by the Justice Department in some future crisis, and they will say well, some little limit is all we need to get around this. And so maybe we need all records from, you know, the East Coast.

And so that’s limited. It’s not the West Coast. But it’s still a massive collection. So the fear is that this change opened the door towards undermining the purpose of the bill, at least potentially.

HARI SREENIVASAN: So, there has been some concern about the lack of or presence of an advocate that — in that FISA court that could keep an eye on the NSA. That is not going to be in this version of the bill?

CHARLIE SAVAGE: So, this version — so, there have been proposals. The Foreign Intelligence Surveillance Court meets in secret and it hears only from the government before issuing secret decisions.

And so the government says, we need more power, and here is our interpretation of the law. And there is no one out there to say, well, wait, your interpretation of the wrong is — your — of the law is not taking this into account, et cetera.

And so part of the fallout from these leaks in understanding what the surveillance court has signed off on in some of the sort of aggressive legal theories about government power it’s blessed in the years since 9/11 has led to this proposal that we need to have some kind of a mechanism so that there is adversarial process, there’s someone in there who is picking apart the government arguments.

And there had been calls for a very strong public advocate, an office of the public advocate, who would have security clearance and would weigh in behind closed doors still, but on behalf of the public from a civil liberties and privacy protection.

What the bill has is not that. It has an ability for a small group of amicus friends of the court who have security clearances to be called upon if the court wants to hear from them, basically. It looks like they don’t have the power to file an appeal if the government wins. And so some the critics of the bill who wanted a more robust adversarial process brought into this very strange closed-door court suggest that that is not good enough.

That is another one of the issues…

HARI SREENIVASAN: Yes.

CHARLIE SAVAGE: … in which the groups are saying they are going to push for as the Senate takes it up.

HARI SREENIVASAN: So one of the concerns is, of course, this is just the House version. What happens in the Senate? Is there going to be pushback? Is this bill likely to go through another incarnation before it reaches the president’s desk?

CHARLIE SAVAGE: Oh, I think so.

Already, some of the senators, like Senator Wyden and Udall, who have been sort of leading the charge for surveillance reform, even before Mr. Snowden’s leaks, have said that they really regret the changes that the administration and House leaders, including Democrats, came up with this week. And they liked the earlier more robust version of the bill.

And the groups are also saying they are going to push for changes. And I think that the White House would very much like to get the groups, the privacy groups who had previously endorsed this bill back on board. And so the process will continue.

HARI SREENIVASAN: All right, New York Times correspondent Charlie Savage joining us from Washington, thanks so much.

CHARLIE SAVAGE: Thank you.