This post, written by Electronic Frontier Foundation legal director Cindy Cohn and policy analyst Mark Jaycox, was originally published by the EFF on Oct. 22.
The Senate is moving quickly on bills to reform many aspects of the NSA spying. Currently, the Judiciary Committee, which has favored privacy in the past, and the chairs of the Intelligence Committees, Senator Dianne Feinstein and Representative Mike Rogers, will be introducing bills tackling the NSA spying.
The Intelligence Committee Bills Must be Stopped
Many of NSA reform bills going through Congress are encouraging, but the most important priority for those who want to stop the spying is to stop the bill by the Intelligence Committees of the House and Senate. The Chairs of each have confirmed that the (still secret) bill is aimed at continuing collection of everyone American’s phone records unabated. The bill will likely provide some window dressing of limited transparency, while shoring up the legal basis for the spying.
Since the leaks in June, the committees’ Chairs have defended the program with justifications the press has thoroughly debunked. While we have opinions about what the best way forward is, the only sure way to not go backwards, or seal the status quo into stone, is to stop the bill currently in the works by the Intelligence Committee chairs.
What “Stop the Spying” Looks Like
We have also been encouraged by the various other proposals being introduced. Here are some ways to think about the bills currently introduced or coming down the pike.
The good bills being proposed are omnibus bills—so-called because they change a variety of different laws. They try to stop the mass collection of innocent Americans’ calling records (using Section 215 of the Patriot Act), phone calls and emails (using Section 702 of the Foreign Intelligence Surveillance Act (FISA)), and try to introduce much needed transparency reforms to the court overseeing the spying, the Foreign Intelligence Surveillance Court (FISA Court).
So far, only S. 1551, the Intelligence Oversight and Surveillance Reform Act—sponsored by Senators Ron Wyden, Richard Blumenthal, Mark Udall, and Rand Paul—has been released. The bill is a fantastic start. The other, by Senator Patrick Leahy and Rep. Jim Sensenbrenner, is still being readied, but we’re hopeful based on what we’ve heard so far.
In general, EFF believes that whatever bill goes through Congress must stop the mass spying; either through nullifying the NSA’s interpretation of Section 215, or otherwise. And it should do so in a publicly verifiable way. It goes without saying that this is, among other things, in addition to reforming the FISA Court process, increasing transparency, and fixing National Security Letters.
Direct path: Forbid Mass Collection
There is a direct way to do this. Congress could unequivocally forbid the government from the mass collection of phone records. Congress usually does this with the phrase “notwithstanding any other law.” This is the path EFF strongly recommends. It looks something like below and includes FISA’s exceptions for wartime and other emergencies.
Notwithstanding any other law, no governmental entity shall engage in the mass collection of communications records, unless the collection is authorized pursuant to sections 1802, 1811, 1843 or 1844 of this chapter.
Indirect Path: “Pertains to” Fix
A second, less direct way, is also being considered. This requires a bit of legislative analysis to understand, so bear with us. Overall, this approach, if done carefully, may also work, but it has a more complicated story than merely banning mass collection.
The change, which we call the “pertains to” fix is to provide that, in addition to being “relevant to” an authorized investigation, the information the NSA wants must also “pertain to” a foreign agent or power. Right now the law doesn’t require that—it only requires “relevance to an authorized investigation” and then says that “relevance” is presumed to be met when information “pertains to” a foreign power.
This change would make “pertains to” a foreign agent or power a separate requirement, and was originally proposed in the 2006 debates when the Patriot Act was up for reauthorization by Congress, meaning that it needed to be voted on again. The basis for thinking that this change would stop mass collection is that, in its White Paper defending its interpretation of Section 215, the Administration pointed to the failure of this “pertains to” proposal to pass as a basis for its claim that Congress actually authorized mass spying in 2006.
The risk in this indirect path is that in the past few months we’ve seen incredibly strained legal definitions by the Department of Justice (DOJ) over words like “relevant.” The same may happen with “pertain to.” Indeed, Judge Claire Eagen of the FISA Court recently wrote that information is “relevant” to an investigation if it’s “pertinent” to the investigation. This may mean that adding “pertinent” may not be interpreted as adding any new requirements.
There’s more: in more than one of the released FISA Court opinions there are allusions to the idea that the government’s first application on May 23, 2006 discussed how all Americans’ calling records “pertain to” the activities of foreign agents. And the most recent DOJ filings—which include its motion to dismiss in the ACLU’s case against Section 215 spying and its submission to the Supreme Court in EPIC’s challenge to the spying—may also reveal that the Administration thinks any collection of records en masse “pertains to” the activities of a foreign agent or power, so long as the records can aid in the discovery of “otherwise hidden connections between individuals suspected of engaging in terrorist activity and unknown co-conspirators with whom they maintain contact in the United States.” These are just some of the reasons why Congress must be certain to stop the abuse of Section 215 with clear—and definitive—language.
Spying On Innocent Users Must Stop
Of course it may be that a court will interpret Congress’ actions in adding the “pertain to” requirement as forbidding mass spying. To be sure, the NSA will find it difficult to get around Congressional intent if the legislative history is clear. So the indirect path might work, despite the DOJ’s theories, and may be more politically palatable. Regardless of whether the issue is taken on directly or indirectly; however, EFF believes that Congress must take steps to stop mass spying. And we’ll be there in the courts to enforce it, long after the spotlight in Congress has moved on.