Critics of the NSA’s bulk data collection and surveillance programs have never been worried about congressional inaction. They’ve expected Congress to come up with something that looked like reform but actually codified and excused the practices being exposed and pilloried. That’s what’s always happened—every amendment or reauthorization to the 2001 USA Patriot Act has built more back doors than walls.
“We will be up against a ‘business-as-usual brigade’—made up of influential members of the government’s intelligence leadership, their allies in thinktanks and academia, retired government officials, and sympathetic legislators,” warned Oregon Sen. Ron Wyden last month. “Their endgame is ensuring that any surveillance reforms are only skin-deep. … Privacy protections that don’t actually protect privacy are not worth the paper they’re printed on.”
The brigade is proceeding with its strategy. Yesterday, Wyden was one of four “no” votes on Dianne Feinstein’s “FISA improvements” bill—11 “aye” votes got it out of the Intelligence Committee, where it had been marked up in secret. Julian Sanchez makes short, ugly work of it:
The bill for the first time explicitly authorizes, and therefore entrenches in statute, the bulk collection of communications records, subject to more or less the same rules already imposed by the FISA Court. It endorses, rather than prohibits, what the NSA is already doing. Moreover, it imposes those restrictions only with respect to bulk collection of communications records—which is dangerous, because it signals to the FISA Court that Congress implicitly endorses the use of Section 215 to collect other records in bulk without comparable restrictions. (The key phrase “acquisition in bulk,” incidentally, does not appear to be given any concrete definition.)
Perhaps most troubling, the bill contains a section stipulating that bulk orders for communcations records may not acquire the contents of any communications. That sounds good, right? The problem is, under canons of judicial interpretation, a narrow and explicit prohibition on getting content under bulk orders for communications records could easily be read to imply that content can be acquired via non-bulk orders, or even via bulk orders for other types of records.
Wyden quickly condemned the bill, too. Senate Whip Dick Durbin has his own alternative bill, but civil libertarians need to look to the House moving on that first—assuming the House can pass anything. And Feinstein’s showy condemnation of the NSA’s reported spying on foreign leaders can be interpreted as a fig leaf for her real work this week.