Comprehensive Surveillance Overhaul Drops, Runs Counter to Intelligence Committee Proposals

The bill would end the bulk collection of phone metadata authorized under Patriot Act Section 215, create a constitutional advocate for the Foreign Intelligence Surveillance Court, amend Section 702 of the Foreign Intelligence Surveillance Act and allow companies to disclose information about the surveillance requests they receive. House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., and John Conyers, D-Mich., sponsored the House version, and Senate Judiciary Chairman Patrick Leahy, D-Vt., sponsored in the Senate. Sensenbrenner, the original Patriot Act author, listed on his website several backers of the USA Freedom Act (http://1.usa.gov/1iiWl6P). They include the National Rifle Association, American Civil Liberties Union, Mozilla, Center for Democracy & Technology, Free Press Fund and American Library Association.

The House version has more than 70 co-sponsors. They include House Oversight Committee Chairman Darrell Issa, R-Calif., and House Communications Subcommittee ranking member Anna Eshoo, D-Calif. House Judiciary Chairman Bob Goodlatte, R-Va., called the bill “a good first step,” in a statement to us Friday. Sensenbrenner said Rep. Justin Amash, R-Mich., Zoe Lofgren, D-Calif., and Issa helped draft the bill.

"Modest transparency and oversight provisions are not enough,” Leahy said in a news release (http://1.usa.gov/1chRbXl). “We need real reform, which is why I join today with Congressman Sensenbrenner, and bipartisan coalitions in both the Senate and House, to introduce the USA FREEDOM Act.” The Senate version has 16 co-sponsors, including outspoken surveillance critics such as Tom Udall, D-N.M., and Richard Blumenthal, D-Conn., who had signed onto a similar package in September with Ron Wyden, D-Ore., and Rand Paul, R-Ky. Other Senate co-sponsors include Mike Lee, R-Utah, and Ed Markey, D-Mass.

But House Intelligence leaders defended Section 215 authorities Tuesday and touted a proposal that would stop short of the USA Freedom Act. House Intelligence Chairman Mike Rogers, R-Mich., said ending bulk collection would remove “a vital tool for the FBI.” His remarks came in his opening statement (http://1.usa.gov/17qLxEs) at an open hearing on surveillance. Rogers also outlined several transparency and privacy protections he was open to enacting. “I shudder to think of what connections will be missed if the [Section 215] program were completely eliminated,” said House Intelligence ranking member Dutch Ruppersberger, D-Md. (http://1.usa.gov/1chPRUc). But he said more needs to be done, and FISA needs reform. He said potential changes include declassification of FISA court decisions, orders and opinions, and expanded congressional reporting, a stronger NSA inspector general and the creation of a FISA court privacy advocate. “Most intriguing, but also the most operationally challenging, is changing how section 215 is implemented,” Ruppersberger said. He mentioned the possibility of moving away from bulk collection toward “a system like the one used in the criminal prosecution system, in which the Government subpoenas individual call data records.”

The government has behaved lawfully and with oversight, said James Clapper, head of the Office of the Director of National Intelligence, to the House Intelligence Committee. “We have compelled industry to help us in this manner, by court order,” NSA Director Keith Alexander said. “And what they're doing is saving lives. And they're being penalized for saving lives.” Ruppersberger asked Clapper if the congressional measures proposed by the House Intelligence Committee would work. Clapper said the government “can and should” declassify FISA documents, describing what’s already been happening. Alexander said a stronger NSA inspector general “wouldn’t hurt.” The FISA court has “absolutely hammered us” at times, Alexander said, saying he has gone before the court when there have been problems.

Also Tuesday, the Senate Intelligence Committee marked up, in a closed session, proposed legislation from Committee Chairman Dianne Feinstein, D-Calif. She has outlined a proposal to increase surveillance transparency and oversight, which contrasts with the USA Freedom Act in preserving bulk collection. Feinstein, often sympathetic to the NSA and a defender of bulk phone records collection, ripped into the agency Monday evening. “It is abundantly clear that a total review of all intelligence programs is necessary so that members of the Senate Intelligence Committee are fully informed as to what is actually being carried out by the intelligence community,” Feinstein said in a statement (http://1.usa.gov/1aaFVZ6). “Unlike NSA’s collection of phone records under a court order, it is clear to me that certain surveillance activities have been in effect for more than a decade and that the Senate Intelligence Committee was not satisfactorily informed. Therefore our oversight needs to be strengthened and increased.”

Feinstein slammed the collection of intelligence on leaders of U.S. ally countries. She called President Barack Obama’s alleged lack of knowledge of such activities “a big problem.” But “Congress needs to know exactly what our intelligence community is doing,” Feinstein said. “To that end, the committee will initiate a major review into all intelligence collection programs.” Targeting the intentions of foreign leaders was “one of the first things I learned in intel school in 1953,” Clapper told Rogers Tuesday, calling it standard practice and not uncommon for ally countries reacting to recent revelations. It’s important to acquire that information to see “if what they're saying gels with what’s actually going on,” Clapper said.

Jan Schakowsky, D-Ill., a member of the House Intelligence Committee, criticized the intelligence officials Tuesday for “robust defense of effectively the status quo.” She pressed them on the USA Freedom Act, which she said “would essentially repeal” much of the Patriot Act. “We are the Intelligence Committee, and we didn’t know that,” Schakowsky said of U.S. eavesdropping on foreign leaders. “And now all of us are dealing with a problem in our international relations. There will be changes.” Rogers called members of House Intelligence acting as if they are in the dark “mystifying.” Rep. Adam Schiff, D-Calif., pressed Rogers on whether he knew of the eavesdropping on foreign leaders, which he did not directly answer. Schiff said “it’s disingenuous” if Rogers is suggesting House Intelligence has information it doesn’t.

The U.S. government actively resisted when members of Congress in the past requested more transparency about bulk phone metadata collection, declassified documents showed this week. Clapper released the documents Monday evening. They “demonstrate the extent to which the Intelligence Community kept both Congress and the Foreign Intelligence Surveillance Court apprised of the status of the [phone records] collection program under Section 215” of the Patriot Act, Clapper said (http://bit.ly/HrUqkx).

But “public discussion of the highly declassified uses of Section 215 authority ... is problematic because it would expose sensitive sources and methods,” then-Assistant Attorney General Ronald Weich told House Judiciary Committee members John Conyers, D-Mich., Bobby Scott, D-Va., and Jerrold Nadler, D-N.Y., in a letter dated Dec. 17, 2009 (http://1.usa.gov/1dk3hQO). “Because we are concerned that public disclosure would cause serious damage to national security, we cannot disclose publicly that Section 215 is used for bulk collection of telephony metadata.” They had asked that October for the Justice Department to disclose more on Section 215. Details of the bulk collection were not revealed until leaks this year.

Weich described efforts to brief members of Congress about the program, and several documents attest to that. An April 2011 memorandum from the NSA to the Senate Intelligence Committee (http://1.usa.gov/1gWqiy0) describes the limited cell site geolocation testing the NSA conducted in 2010 and 2011 -- revealed publicly in recent months. A September 2011 NSA document to the House and Senate Judiciary Committees expanded on this “acquisition of mobility data,” saying NSA requested location information be removed from these cellular records (http://1.usa.gov/17UMH5q). There is an August 2010 declassified cover letter (http://1.usa.gov/HsmpjR) Weich drafted to top members of the Senate and House Intelligence and Judiciary committees, promising a cache of FISC documents not included in the declassification. “In Calendar Year 2008,” intelligence officials told House Intelligence leadership in October 2009 (http://1.usa.gov/1dGlRVZ), “telephone numbers tipped from the NSA business records results either added value or led to: the opening of over 240 Threat Assessments; the opening of over 100 Preliminary Investigations; the opening of approximately 15 Full Investigations; 180 National Security Letters issued.” Multiple other 2009 documents make mention of an “end-to-end review” done of the bulk phone records program “in light of issues that had arisen,” one memo to the Intelligence committees said.

"We are two veteran lawmakers who believe now is the time for that reform and for a meaningful discussion about protecting privacy and national security in the 21st century,” Sensenbrenner and Leahy said in a joint Politico op-ed Tuesday (http://politi.co/16IHGwr). “Congress did not enact FISA and the PATRIOT Act to give the government boundless surveillance powers that could sweep in the data of countless innocent Americans. If all of our phone records are relevant to counterterrorism investigations, what else could be?”

Free Press, Public Knowledge, the Software & Information Industry Association, Center for Democracy & Technology and California-based phone company Credo Mobile lauded the introduction of the USA Freedom Act. “This bill ensures substantial, meaningful reform,” said Public Knowledge Vice President-Legal Affairs Sherwin Siy. It “restores the balance between privacy and security, preserving investigative powers while reining in unwarranted bulk collections,” said Free Press Policy Director Matt Wood.