Scaling back The price of moving the bill toward passage – still an incomplete task – has been the gradual loosening of its privacy and disclosure measures. Its original version, introduced in Congress in October, went beyond ending the bulk domestic phone records collection. It prevented the NSA from warrantlessly combing through its troves of ostensibly foreign-focused email and phone content for Americans information; curbed the FBIs use of a kind of non-judicial subpoena called a National Security Letter; and created a permanent public advocate on the secret Fisa Court to push back against government surveillance demands. All of that was scaled back significantly as part of a compromise in the House of Representatives to turn the Freedom Act into the sole legislative vehicle for surveillance reform. Call data records became what the NSA could no longer collect in bulk, leaving other records – potentially including internet data – insufficiently protected from mass collection. Importantly, even the original bill never addressed other aspects of the Snowden disclosures that have riled the world. Its privacy protections have only ever applied to Americans, as US legislators have been consistently disinclined to abridge the NSAs ability to conduct foreign spying, even in bulk. It also left the NSA free to undermine encryption standards. But civil libertarians, wary of an alternative bill with weaker privacy safeguards, continued to cautiously support the bill. It passed the House judiciary committee on May 7 unanimously, and the House intelligence committee, a hotbed of NSA support, the following day, also without dissent. Then the lawyers and the negotiators got involved, seizing a parliamentary opportunity to make technical fixes to the bill between its committee passage and arrival on the House floor. Major divisions Over the next two weeks, according to sources familiar with the discussions, attorneys for the government presented legislative aides with a series of changes they desired the text of the Freedom Act to include. Negotiations took place in secured rooms in the Capitol basement, in the suite of majority leader Eric Cantor and especially over the phone. Taking point for the government delegation was Robert Litt, Clappers combative senior lawyer. No one who discussed the negotiations said the meetings became heated. Nor were voices said to have been raised. Even congressional staffers who sought to constrain NSAs powers were uninterested in antagonizing the agency, which they considered unproductive. Still, the relative conviviality concealed major divisions between the security agencies and their congressional overseers. Litt, who would not comment for this piece, was not alone. Representatives for the NSA, FBI, the Justice Department, and the White House assisted. But it was the FBIs operations, not the NSAs, that Litt and others relied on to jar open the text of the bill. They expressed concern that the parameters of what the Freedom Act permitted the government to collect would inhibit the FBIs counter-terrorism and cybersecurity operations, an argument that NSA critics in the room were wary of rejecting. The biggest sticking point, and perhaps the most consequential change, concerned the definition of what it is the government must specify to a judge it is interested in collecting, known as a specific selection term. The version of the bill passed by the two committees defined a specific selection term as a term used to uniquely describe a person, entity, or account. Litt and his allies argued that the term might inhibit the FBI in its hunt for potential terrorists. A judge might not permit, for instance, a search for hotel records in part of a major city during the early stages of an investigation. Congressional negotiators were simultaneously worried about introducing loopholes into their bulk-collection prohibitions and inadvertently over-restricting the FBI from pursuing legitimate investigations. Litts team wanted the selection-term definition to exclude restricting adjectives and adverbs like uniquely and specifically. They wanted to add the words facility and location. Negotiations on the language outlasted discussions on all other subjects. It was not until May 20 that a deal was struck and the bill text published. Specific selection term now meant a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the government to limit the scope of the information or tangible things sought. The Freedom Act ultimately sped to passage in the House on May 22 by a bipartisan 303-121 vote. NSA advocates who had blasted its earlier version as hazardous to national security dropped their objections – largely because they had no more reason. Accordingly, the compromise language caused civil libertarians and technology groups not just to abandon the Freedom Act that they had long championed, but to question whether it actually banned bulk data collection. The government could acquire call-records data up to two degrees of separation from any reasonable articulable suspicion of wrongdoing, potentially representing hundreds or thousands of people on a single judicial order. That was not all. Jim Sensenbrenner speaks the media after the House passed the bill. Jim Sensenbrenner speaks the media after the House passed the bill. Photograph: Jim Lo Scalzo/EPA
Posted on: Mon, 09 Jun 2014 13:24:00 +0000
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