This article, compiled by legal director Cindy Cohn and legislative analyst Mark M. Jaycox, was originally published by the Electronic Frontier Foundation on March 25.
Today we learned that the Obama Administration and the House Intelligence Committee are both proposing welcome and seemingly significant changes to the mass telephone records collection program. Both the Obama Administration and the Intelligence Committee suggest that mass collection end with no new data retention requirements for telephone companies. This is good news, but we have not seen the details of either. And details, as we have learned, are very important in assessing suggested changes to the National Security Agency’s mass spying.
But comparing what we know, it appears that the Obama Administration’s proposal requires significantly more judicial review — not just reviewing procedures, but reviewing actual search requests — so it’s preferable to the Intelligence Committee’s approach.
Yet a new legislative proposal isn’t necessary here. There is already a bill ending bulk collection. It’s called the USA FREEDOM Act by Judiciary Committee chairs Senator Patrick Leahy and Representative Jim Sensenbrenner. It’s a giant step forward and better than either approach floated today since it offers more comprehensive reform, although some changes are still needed. We urge the Administration and the Intelligence Committees to support the USA FREEDOM.
Or better still, we urge the Administration to simply decide that it will stop misusing section 215 of the Patriot Act and section 702 of the FISA Amendments Act and Executive Order 12333 and whatever else it is secretly relying on to stop mass spying. The executive branch does not need Congressional approval to stop the spying; nothing Congress has done compels it to engage in bulk collection. It could simply issue a new executive order requiring the NSA to stop.
Also, the Obama Administration does not go beyond the telephone records programs, which are important, but are only a relatively small piece of the NSA’s surveillance and, by itself, won’t stop mass surveillance. We continue to believe that comprehensive public review is needed through a new Church Committee to ensure that all of the NSA’s mass surveillance is brought within the rule of law and the Constitution. Given all the various ways that the NSA has overreached, piecemeal change is not enough.