The House's NSA Bill Could Allow More Spying Than Ever. You Call This Reform?

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The Guardian

The House's NSA Bill Could Allow More Spying Than Ever. You Call This Reform?

Congress' serial fabricator has the audacity to call his new law the 'End Bulk Collection Act'. Obama's proposal isn't much better

The White House and the House Intelligence Committee leaked dueling proposals last night that are supposedly aimed at ending the mass collection of all Americans’ phone records. But the devil is in the details, and when it comes to the National Security Agency’s unique ability to twist and distort the English language, the devil tends to wrap his horns around every word.

The House proposal, to be unveiled this morning by Reps Mike Rogers and Dutch Ruppersberger, is the more worrying of the two. Rogers has been the NSA’s most ardent defender in Congress and has a long history of distorting the truth and practicing in outright fabrication, whether in touting his committee’s alleged “oversight” or by way of his attempts to impugn the motives of the once again vindicated whistleblower who started this whole reform debate, former NSA contractor Edward Snowden.

As a general rule, whenever Mike Rogers (not to be confused with incoming NSA director Michael Rogers) claims a bill does something particular – like, say, protect your privacy – it's actually a fairly safe assumption that the opposite will end up true. His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans’ data while it sits in the hands of the phone companies.

While the full draft of the bill isn’t yet public, the Guardian has seen a copy, and its description does not inspire confidence. Under the Rogers and Ruppersberger proposal, slyly named the “End Bulk Collection Act”, the telephone companies would hold on to phone data. But the government could search data from those companies based on "reasonable articulable suspicion" that someone is an agent of a foreign power, associated with an agent of a foreign power, or "in contact with, or known to, a suspected agent of a foreign power". The NSA’s current phone records program is restricted to a reasonable articulable suspicion of terrorism.

A judge would reportedly not have to approve the collection beforehand, and the language suggests the government could obtain the phone records on citizens at least two “hops” away from the suspect, meaning if you talked to someone who talked to a suspect, your records could be searched by the NSA. Coupled with the expanded “foreign power” language, this kind of law coming out of Congress could, arguably, allow the NSA to analyze more data of innocent Americans than it could before.

President Obama’s reported proposal sounds more promising, though we have even fewer details than the Intelligence Committee proposal. The administration’s plan would supposedly end the collection of phone records by the NSA, without requiring a dangerous new data retention mandate for the phone companies, while restricting analysis to the current rules around terrorism and, importantly, still requiring a judge to sign off on each phone-record search made to the phone companies – under what the New York Times described as "a new kind of court order".

This phone plan, apparently, represents Obama coming full-circle as his self-imposed deadline on NSA reform arrives Friday, when the court order authorizing bulk collection runs out. But there’s no indication that the president's plan would stop other types of bulk collection – such as internet or financial records – and there’s still a big question about what the NSA could do with the data they receive on innocent people two "hops" away from a suspect.

Critically, neither proposal touches the NSA’s under-reported and incredibly dangerous “corporate store”, at least that we know of. For years, the NSA has been allowed to search phone numbers up to three “hops” away from suspect, so long as it had “reasonable articulable suspicion” that the suspect was involved in terrorism. This was recently ratcheted down to two hops, but the hop-scotching method inevitably pulled millions of innocent people into the NSA’s dragnet.

The NSA insisted the database was only used for that sole purpose of monitoring someone within a couple degrees of separation from a suspect. However, it was only revealed recently that the NSA then dumps all of those numbers and connections – even those three hops away – into another database called “the corporate store”, where the NSA can do further analysis of your information and doesn't need “reasonable articulable suspicion” for anything. The Foreign Intelligence Surveillance Court has also exempted the corporate store from audit requirements about how often the vast database is searched.

The American Civil Liberties Union puts it like this:

If, for some reason, your phone number happens to be within three hops of an NSA target, all of your calling records may be in the corporate store, and thus available for any NSA analyst to search at will.

This is bulk collection at its worst, and these new reforms aren't nearly good enough.

Rep James Sensenbrenner’s bill, the USA Freedom Act, would make a much stronger and more comprehensive bill than either new proposal – at least for those interested in real NSA reform. Sensenbrenner, who originally wrote the Patriot Act provision that the NSA re-interpreted in secret, called the House Intelligence proposal "a convoluted bill that accepts the administration's deliberate misinterpretations of the law". Although, even his bill could be strengthened to ensure bulk collection of Americans' records is no longer an option for the NSA, or any other government agency.

In the end, there's a simple way to stop all forms of bulk collection and mass surveillance: write a law expressly prohibiting it.

Trevor Timm

Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and legal analyst who specializes in free speech and government transparency issues. He writes a weekly column for The Guardian and has also contributed to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and Policy Review, PBS MediaShift, and Politico. Follow him on Twitter: @TrevorTimm

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