A week after a federal appeals court ruled that the National Security Agency's bulk data collection program was unconstitutional, the Obama administration is urging Congress to approve legislation that would put new limitations on the agency's power to track the private phone calls and emails of millions of Americans. The USA Freedom Act, a version of which passed the House on Wednesday and which the Senate is expected to vote on soon, would rein in some of the most serious abuses of the massive government spying program while continuing to allow the agency to target the communications of suspected terrorist networks. We urge senators to approve the legislation.
The vote comes as lawmakers face a June 1 deadline for reauthorizing the Patriot Act, which Congress initially passed in 2001 following the terrorist attacks in New York and Washington. The NSA, with the blessing of a secret intelligence court, used the law to authorize the collection of information about virtually all the electronic messages Americans send or receive in order to uncover suspicious patterns of activity that might be related to terrorism. It wasn't until 2013, when former NSA contract worker Edward Snowden leaked a trove of classified documents to the press, that the full extent of the agency's intrusion into the private lives of ordinary Americans was revealed.
The USA Freedom Act being considered by Congress would change a key provision of the current law, Section 215, which authorizes the NSA to collect the so-called "metadata" — times, duration and location — of phone and email messages anywhere in the world if it deems them "relevant" to a terrorism investigation. This month a three-judge panel of the 2nd Circuit U.S. Court of Appeals in New York rejected that standard, ruling that if it accepted the NSA's broad interpretation of "relevancy" literally everything could be viewed as related to the war on terror in some fashion and thus the right to privacy would be meaningless.
Congress now has a chance to fix those shortcomings in the law. The proposed legislation would ban the NSA from snatching up phone and email data on its own servers and instead require the telecommunications companies to store that information. The NSA or other intelligence agencies could get it only after first obtaining permission from the secret Foreign Intelligence Surveillance Court, which heretofore has not been involved in approving individual requests. The FISA court has been criticized as little more than a rubber stamp for whatever the NSA wants to do, but by requiring the agency to at least specify what it is looking for and why, the FISA court could begin to serve as a more effective check on abuses, and it would have to make its decisions public.
Moreover, the law would put limits on the number of related telephone numbers the NSA could collect data about. Currently, the law allows the agency to investigate any numbers called by a specific telephone, plus any calls made to or from those numbers and then any calls made by that third set of callers — the so-called "three hops" rule. The USA Freedom act would limit the agency's reach to just two "hops," which in theory would shrink the pool of callers subject to scrutiny (though skeptics argue the agency could get around that restriction by getting a separate authorization to eavesdrop on all the second-order callers in its original request).
Most lawmakers in Congress recognize that the current law, forged in the immediate aftermath of 9/11, when national security concerns overrode any consideration of privacy rights, needs to be revised. Wednesday's House vote was an overwhelming 338-88, perhaps as strong a bi-partisan majority as we've seen for any substantial legislation in Congress in recent years. The bipartisan consensus isn't quite as strong in the Senate, but the bill almost certainly has enough support to pass — if it comes up for a vote. Republican Senate Majority Leader Mitch McConnell and Senate Intelligence Committee Chairman Richard Burr have both opposed the measure in favor of a straight reauthorization of the current law without amendments.
The American people have clearly expressed their unease over the prospect of a ubiquitous "Big Brother" keeping tabs on their every electronic communication. President Obama, who initially resisted tampering with the current law, now says he will sign the Freedom Act if it reaches his desk. The House already has done it's part. Now it's up to the senators to do theirs.