Why Privacy Advocates Aren’t Celebrating The Senate’s Groundbreaking NSA Surveillance Bill Just Yet

CREDIT: AP/Patrick Semansky

The U.S. Senate is expected to make huge strides Tuesday by introducing a new bill that could curtail the National Security Agency’s (NSA’s) ability to collect mass amounts of data. But while the new bill was reached in compromise and promises significant changes in favor of individual privacy, advocates worry it could be stripped down as previous bills were.

Sen. Patrick Leahy (D-VT), who leads the Senate Judiciary Committee, has championed a new version of the USA Freedom Act with several key changes that so far have garnered preliminary support from top privacy advocates and the Obama administration. The House passed its own rendition of the bill in May. But critics of that bill said it was significantly watered down from its original drafts and gave way for the NSA to continue bulk collections. However, the Senate bill — at least the draft — is expected to tighten at least a dozen requirements left open for interpretation in the House version.

The bill “addresses some of the ambiguities” in the House bill and narrows how much information the NSA can get upfront, Harley Geiger, senior counsel for the Center for Democracy and Technology told ThinkProgress. For example, the NSA wouldn’t be able to request data based on a broad geographic region, such as a ZIP code or area code. The bill also restricts collecting bulk communications from an Internet service provider unless the company itself is a target in the investigation, Geiger said. Language in the House-passed bill made it so that the NSA could theoretically collect all emails or instant messages from a single service provider like Google’s GMail.

“Because we knew there wasn’t going to be a magic definition that satisfied everyone, we suggested the government use the least intrusive means [of collecting data] on the front end,” and on the backend, purge or delete any information that isn’t pertinent to the investigation, Geiger said.

The most recent NSA document leaks showed that 90 percent of what the agency collected belonged to ordinary citizens, not suspected terrorists, and even contained intimate details of love affairs and daily routines, according to a The Washington Post reported earlier this month.

The bill would also green light transparency efforts by appointing a judge-approved public advocate for secret FISA Court proceedings and a declassification review process for FISA cases, according to a member of the American Civil Liberties Union (ACLU) legislative team, who didn’t want to be named because the bill’s specifics are tentative. In cases where the executive branch says court records must stay classified because of national security, the Senate bill requires the court to publicly file a summary with broad stroke details.

But privacy groups are careful — and hopeful — in lending their support of the new bill, in part because the version the House passed barely resembled their compromised effort approved by the Judiciary Committee, advocates and the intelligence agency.

“We support the draft we saw, but presuming that draft comes out tomorrow, we support it,” Geiger said, but warned “there will be multiple opportunities to weaken it.”

Moreover, the bill is still a far cry from what was desired. If this were a marathon, “we’re at mile five, not 26,” the ACLU told ThinkProgress, adding that while the bill is much better than what the House passed, it’s not as strong as the draft that came out of the House committee.

But even if passed in its entirety, the Senate bill isn’t a complete fix for all government surveillance issues. This bill isn’t “some sort of end-all solution to national security surveillance. This doesn’t solve everything…There is no guarantee that this is going to end bulk collection [entirely, but] we think the bill makes it a lot less likely,” Geiger said.

Because the law is up to interpretation, it’s possible that bulk collection could creep up again if the Senate bill is adopted. That means despite the specific language of the bill, an attorney could read it in a way that permits bulk-type collections in some form. In the past, the government was able to interpret the Patriot Act in a way that justified bulk collection in the first place, Geiger noted.