Beware of Poison Pill Spying Reform

In the wake of revelations over the last few months about massive NSA surveillance programs that violate the privacy of millions of innocent Americans, members of the congressional Intelligence Committees have begun to draft legislation that they say will reform these authorities. There’s just one problem – unlike reform bills proposed by other members of Congress, the Intelligence Committees’ bills might do more to entrench domestic surveillance programs than rein them in.

At a Senate Intelligence Committee hearing last month, Sen. Dianne Feinstein (D-Calif.) described her proposals, and one thing is clear: they won’t fix anything. In fact, they may even make government surveillance worse. They include:

• Legalizing the warrantless wiretapping of people known to be located in the U.S. for 7 days where that surveillance began abroad; and
• Legalizing queries of U.S. persons’ names or e-mail addresses without probable cause, so long as it is for “articulable foreign intelligence purposes.”

These changes would represent significant expansions of the NSA’s domestic surveillance authorities under Section 702 of the FISA Amendments Act, an already overly broad law that authorizes the suspicionless surveillance and collection of millions of Americans’ communications, including the contents of their emails.

Sen. Feinstein’s proposal also wouldn’t reform the bulk collection of Americans’ call records but actually put Congress’s stamp of approval on the unconstitutional and indiscriminate surveillance program. Her tweak to the program includes:

• Changing how the NSA accesses Americans’ phone records but NOT limiting whose records are swept up in the NSA’s bulk telelphony metadata program, under Section 215 of the Patriot Act.

The purpose of this reform, according to Sen. Feinstein, is “to change but preserve [the] program.” She is clear that she has no intention to fix the law or to rein in the dragnet collection of Americans’ call records. These changes would merely limit who can access the records and would codify the requirement that there be a “reasonable articulable suspicion that a phone number is associated with terrorism in order to query it.” This does not limit the current “3 hops” rule that may be sweeping up millions of additional Americans’ numbers into NSA databases or add any additional privacy protections.

To be fair, Sen. Feinstein’s proposals do include reporting requirements, such as making public the number of phone numbers queried by the NSA each year, and accountability measures, such as Senate confirmation of the director of the NSA. While these proposals for increased transparency and oversight would be important additions to these surveillance programs, they do not fix them. They do not stop the NSA’s mass surveillance of millions of innocent Americans.

As Congress considers the two dozen bills that have been introduced so far, it should ensure that, at a minimum, reforms include:

• Ending bulk collection of Americans’ information under Section 215 of the Patriot Act;
• Prohibiting suspicionless, dragnet collection of Americans’ communications under Section 702 of the FISA Amendments Act;
• Increasing transparency of domestic surveillance programs with public reporting by the government and private sector, and limiting the issuance of gag orders associated with national security informational requests; and
• Allowing public judicial review of the NSA’s sweeping surveillance programs.

The good news is that dozens of members of Congress – like Sen. Patrick Leahy (D-Vt.), Sen. Ron Wyden (D-Ore.), and Rep. Jim Sensenbrenner (R-Wis.) – are already hard at work to pass fixes that would take big steps toward reining in the NSA’s domestic surveillance programs. And don’t forget that Rep. Justin Amash (R-Mich.) got the House within 7 votes of defunding the bulk call records collection program altogether this summer. The momentum for reform is strong.

Despite this, Feinstein and some of her colleagues in the Senate and House Intelligence Committees are working on a proposal that would expand the NSA’s domestic surveillance authorities. In just a few short hours, the Senate Intelligence Committee will mark it up in secret, without even publicly releasing the initial draft language.

Americans are tired of excessive surveillance and secrecy. It’s time for Congress to legislate on these programs in the daylight and to pass real reforms.

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