Critics: Vague Language in House NSA-Curbing Bill Leaves Door Open to Spying

The House of Representatives passed a bill last week that would restrict the National Security Agency's ability to collect bulk information, heralded as a milestone of the post-Snowden era. With days to examine it, many critics now note that the bill may allow continued surveillance, due to the bill's vague and convoluted language.

The USA Freedom Act, its authors argue, aims to end the bulk collection of phone call data by the NSA. It aspires to make it more difficult for the NSA to use its powers to summon "tangible things" as part of an investigation to acquire a massive amount of data that would exceed the definition of 'one tangible thing,' even if all the information is related to the same person or group. The bill also requires that the NSA "promptly" destroy records that it no longer needs for an investigation.

Those seeking to limit the powers of the NSA appear to agree with the spirit of the law, but not its letter. Bill sponsor Rep. F. James Sensenbrenner, Jr. said after the bill's passing that he "wish[ed] this bill did more," and that he too "lament[s] changes" in the bill that made it more possible for the NSA to not run afoul of its requirements while still operating in much the same way it does now. In a post suggesting that the bill was far too weak to significantly change the operations of the NSA, ACLU legislative counsel Gabe Rottman writes with optimism, "This is the first time since passage of the Patriot Act that Congress has acted in any way to restrain, rather than expand, foreign intelligence surveillance authority." 

In The Washington PostH.L. Pohlman details the last-minute changes in the House bill that have privacy advocates lukewarm about the USA Freedom Act. The previous version of the bill that had not been edited to address the concerns of the intelligence community, for example, demanded the destruction of certain kinds of bulk information after five years. Now, the bill requires "prompt" destruction of the information, with no concrete limits.

Similarly, the bill now also allows for collection of some call record information "other than in the manner described." As Pohlman notes, the "manner described" is very specific: daily collection of call records: "What if the NSA sought instead to do this weekly? Monthly?"

Still, others are concerned that the bill makes it even easier to store bulk phone information, even when taking it out of the hands of the NSA. In The New York Times, Nathan Sales writes that the bill will, in some ways, transfer the power to collect bulk information to phone companies and out of the hands of the NSA. While "the N.S.A. is hardly a poster child for public transparency," he notes, "its programs are closely monitored by Congress, the White House and the judiciary. It’s not clear that the private sector will be subject to similar oversight mechanisms." The companies collecting the information will not be beholden to authority in the same way.

The USA Freedom Act is now passing into the hands of the Senate, where a separate party of legislators will attempt to mold it to their demands. In the process of passing reform legislation, the issue may also fall into the hands of the Supreme Court--Justice Antonin Scalia has hinted in the past that "NSA stuff" may appear before the bench. In the meantime, polls show that the revelations that Americans are being spied on en masse have altered their relationship with the Internet, prompting such attempts at reform, but leaving many advocates unsatisfied. 


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