Although the National Security Agency, in complying with USA Freedom Act, scaled back its practice of collecting bulk telephone records at the end of November, many privacy advocates remain concerned.
They say the legislation, passed earlier this year to limit NSA collection powers under the antiterrorism Patriot Act, doesn’t clearly define the agency’s record collection limitations or prevent it from seeking other legal authority, such as a presidential executive order, to resume bulk collection.
The USA Freedom Act “potentially leaves room for maybe not nationwide collection, but still surveillance that’s going to suck up the information of a lot of innocent people,” says Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union. “Maybe it’s not everyone in America, but maybe it’s hundreds of people, or potentially thousands of people.”
“There are a lot of unknowns about how, exactly, the FISA court will interpret the language in the USA Freedom Act,” — Harley Geiger, senior counsel, Center for Democracy & Technology
One big question about the NSA phone records program, going forward, is how the Foreign Intelligence Surveillance Court (FISC) will interpret the USA Freedom Act. The law requires the NSA to use specific selection terms to target U.S. telephone and business records, and it prohibits the agency from collecting all records from a city or ZIP code, but it does not define “specific selection term.”
Since 2006, FISC has allowed the NSA to collect all U.S. phone records by broadly defining the Patriot Act’s requirement that records collected be “relevant” to an ongoing terrorism investigation. And while the new law requires the court to declassify its significant opinions, it does not clearly define how “significant” a publicly revealed such opinion should be, Guliani says.
“There are a lot of unknowns about how, exactly, the FISA court will interpret the language in the USA Freedom Act,” says Harley Geiger, senior counsel at the Center for Democracy & Technology. “It’s difficult at this very early juncture to assess how effective the legislation is at ending large-scale surveillance.”
Privacy groups will keep an eye on FISC, says Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation. “We know that the intelligence community often plays word games, but the transparency provisions in the USA Freedom Act attempt to make sure the public is fully informed about the replacement program,” he says. “Ideally, the provisions should flag any concerns by revealing important FISA Court orders to the public.”
Privacy advocates are also concerned with how “the intelligence community might drum up creative interpretations of its statutory authority,” adds Tom Struble, policy counsel at TechFreedom, a libertarian-leaning think tank.
An NSA representative didn’t respond to a request for comment on privacy groups’ concerns. Several members of congressional intelligence committees and some other Republicans, meanwhile, are decrying any new limits on the NSA phone records program, saying a scaled back program will make the United States more vulnerable to terrorism.
Phone records surveillance highlights struggle for security
After an apparent Islamic State-inspired mass shooting in San Bernardino, Calif., last week, the FBI has been “forced to investigate this attack with one hand tied behind their back because our valuable NSA metadata program was shut down just days earlier,” Sen. Tom Cotton, R-Ark., said in a statement.
The attack is serving “as the guinea pig in a giant experiment on our national security. It’s a frightening and uncomfortable thought,” added Cotton, who introduced legislation to roll back the USA Freedom Act changes to the NSA phone records program. “I hope this is the first and only example we see of the danger in shifting from a proven-effective system to a new, untested one purely for political talking points.”
Privacy advocates note that other NSA surveillance programs still enable the collection of large swaths of U.S. residents’ data, including the so-called Prism program, which targets foreign communications. While Prism focuses on surveillance of digital communications overseas, the NSA and CIA can search the collected communications for information about U.S. residents.
Reform of the overseas surveillance programs remains “unfinished business,” Guliani says.
Congress must continue to push for broader surveillance reforms, says Sen. Ron Wyden, D-Ore.
The USA Freedom Act was “the most significant victory for Americans’ privacy rights in over a decade, but the fight to protect Americans’ constitutional rights from government overreach is not over,” he said through a spokesman. “As long as Americans keep demanding policies that protect both their security and their liberty, you can expect to see more reforms.”