Will USA Freedom Act rein in NSA domestic phone data collection?

Like most political compromises, this week’s congressional effort to rein in the federal government’s massive data collection program under the USA Patriot Act of 2001 fully satisfies no one – which is probably why it (or some similar version) will be signed into law.

In the US House this week, lawmakers voted 338 to 88 to approve the “USA Freedom Act.” It would allow for the continued collection of private phone records, but the data would be stored by private phone companies, and not by the National Security Agency (NSA). The government could still access the information, but it would need a court warrant.

As Russell Berman points out in the Atlantic, the House bill represents bipartisan compromise, drawing support from the original author of the Patriot Act, conservative Rep. Jim Sensenbrenner, along with such liberal Democrats as Reps. John Conyers of Michigan and Jerrold Nadler of New York, staunch civil libertarians. The White House has said President Obama would sign it. 

In the two years since former NSA contractor Edward Snowden blew the whistle on the agency’s secret program, the debate over protecting national security while at the same time preserving privacy protections has raged. It’s unlikely that congressional action now proceeding will stop that.

Sen. Ron Wyden (D) of Oregon, one of the main critics of the US surveillance program, who has threatened to filibuster any extension of the current post-9/11 program, sees the House vote as “an important step for protecting the privacy of Americans by voting to end the bulk collection of millions of Americans’ personal information under Section 215 of the Patriot Act.”

“I am also encouraged that the version of the USA Freedom Act passed today [Wednesday] increases transparency and improves the Foreign Intelligence Surveillance Court process,” Senator Wyden said in a statement. “I am working with Senate colleagues to pass additional reforms, particularly ending the warrantless backdoor searches of Americans' personal electronic communications under Section 702 of the Foreign Intelligence Surveillance Act. And I have made it clear I will fight any effort to extend mass surveillance of Americans’ records through a straight renewal of the Patriot Act – even a short-term one.”

Therein lies the political rub in the Senate, especially for majority leader Mitch McConnell (R) of Kentucky.

Three provisions of the Patriot Act (including Section 215) are set to expire June 1. Meanwhile, a federal appeals court in New York ruled last week that the program is illegal. Stuck between a deadline and a court ruling, Senator McConnell has said he wants to reauthorize all three provisions of the Patriot Act without changes.

On Thursday, a bipartisan group of senators and representatives warned against any effort to simply reauthorize the Patriot Act. Instead, they said in a statement, “the Senate should immediately pass the USA Freedom Act” already approved by a wide measure in the House.

Even so, the House bill remains controversial.

“It's true that the bill ends the phone dragnet as we currently know it – by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold – but H.R. 2048 [the House bill] actually expands the statutory basis for the large-scale collection of most data,” Rep. Justin Amash (R) of Michigan wrote on his Facebook page.

The House bill does this “by authorizing the government to order the production of records based upon a ‘specific selection term’ (i.e., like a search term used in a search engine),” Representative Amash writes. “The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the ‘specific selection term’ as defining the outer limits of what Congress considers acceptably ‘relevant’....”

On the other hand, warns Michael Mukasey, who served as US attorney general in the administration of George W. Bush and before that as a federal judge, changes in data collection favored by the White House and now most members of the House amount to “a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff).”

“The government, under [this] plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn, with no requirement that the companies retain data and thus no guarantee that it would even be there,” Mr. Mukasey writes in a Wall Street Journal op-ed column this week. “These constitute burdens on national security with no meaningful privacy protection.”