Senator Dianne Feinstein (D-CA) has been one of the most stalwart defenders of widespread NSA surveillance since leaks with information about the programs started seeping out nearly five months ago. Civil libertarians and reformers have been none too pleased with her rhetoric—and they’re not going to get any happier after reading the bill she introduced today.
The FISA Improvements Act has already attracted plenty of critics who view it as no improvement at all. In fact, they say, Feinstein’s bill would make things much worse. It would actually enshrine the NSA “bulk data” collection programs into law and grant official Congressional approval to widespread surveillance programs that haven’t ever received such affirmation before.
Her bill comes on the heels of a competing bill introduced earlier this week that reformers say would be a real step in the right direction. It would outright ban some of the programs that Feinstein is vociferously defending. Dozens of politicians have now stated they’re ready to end the controversial “bulk data” programs, including the NSA’s practice of keeping a log of every phone call made in the United States. In the House of Representatives, 70 members signed on to a bill proffered by Rep. Jim Sensenbrenner (R-WI), the sponsor of the original Patriot Act, which would shut the programs down. A companion bill in the Senate has a dozen co-sponsors, as well.
“I’d laugh if I weren’t so offended,” said Jennifer Granick, of Stanford’s Center for Internet and Society, in an e-mailed comment about Feinstein’s bill. “It legalizes the currently illegal bulk collection of phone records and its language—whether sloppily or intentionally, I don’t know—encourages the NSA to conduct bulk collection of other kinds of records under 215, as well as content, without even the bill’s purported ‘safeguards.'”
The “enhanced criminal penalties” for unauthorized access to data actually criminalizes anyone who accesses a computer “without authorization,” noted Ruthann Robson, professor of Law at City University of New York. “While couched in protecting privacy and data, this provision would also further sanction and chill whistleblowers.”
“The modest improvements [the bill] makes are far outweighed by the damage it does to civil liberties,” said Greg Nojeim, of the Center for Democracy and Technology.
Capitol Hill showdown brewing on surveillance
In introducing the bill, Feinstein reiterated there’s essentially nothing wrong with the current situation. “The NSA call-records program is legal and subject to extensive congressional and judicial oversight, and I believe it contributes to our national security,” she said. “But more can and should be done to increase transparency and build public support for privacy protections in place.”
Feinstein’s statements about the bill make it sound reform-ish, but when closely read, it mainly constitutes re-iterations of the status quo. For instance, the bill “prohibits the bulk collection of the content of communications under Section 215 of the USA PATRIOT Act” (no emphasis in original). The NSA and its defenders, including Feinstein and President Barack Obama, have already stated repeatedly that they don’t gather content.
The legislation would also “prohibit the collection of bulk communication records under Section 215 of the USA PATRIOT Act except under specific procedures and restrictions set forth in the bill.” In other words, it forbids the collection of data unless it’s collected in a way that the intelligence committee approves of—essentially the same thing that’s been happening for years.
The bill includes other safeguards and reporting requirements, most of which are already in place, such as limiting the number of contacts or “hops” that an analyst can get when querying bulk communications.
The Senate Intelligence Committee passed the bill out of committee on an 11-4 vote earlier today—a vote held in a secret, closed session.
There seems to be a showdown brewing between surveillance hawks and reformers in Congress. Both sides cross party lines in unexpected ways, and it isn’t clear which side will prevail. Sensenbrenner’s bill has become quickly popular, yet the Senate Intelligence Committee clearly has a strong majority in favor of these programs. Similarly, when General Keith Alexander and Director of National Intelligence James Clapper came to Congress for a hearing on Tuesday, top members of the House Intelligence Committee mostly showed support for their actions. The recent tone suggests that intelligence committees in both houses may be out of step with the sentiment elsewhere in Congress.
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