The sweeping surveillance programs the NSA has used to spy on Americans outside the bounds of existing laws would be officially authorized under new legislation from Sen. Dianne Feinstein, passed out of the Intelligence committee
last week. Feinstein calls this a "reform," but what it would actually do is make legal all of the abuses uncovered by Edward Snowden's leaks, codifying the NSA's collection of all of our phone records—a massive setback for privacy rights.
Privacy experts say that the FISA Improvements Act, which passed 11-4, codifies current surveillance practices instead of fixing the law to protect the privacy and civil liberties of Americans: "This was an opportunity for Congress to really recalibrate the statute, and it's very disappointing that they've used this opportunity to cement domestic spying programs instead," says Michelle Richardson, legislative counsel for the ACLU.
The primary focus of the bill is Section 215 of FISA. This is the part of the law that provides the legal justification for the bulk collection of the telephone metadata of Americans, including phone numbers and the date and duration of calls (but not the content of those conversations). While the bill's language amends the statute to prevent the NSA from hoovering up phone metadata en masse, it provides gaping loopholes that could allow the agency to continue with its bulk collection practices as usual, such as if there's a "reasonable articulable suspicion" that an investigation is related to international terrorism. The legislation also makes it legal for the government to collect and search records that are three "hops" from a target who is suspected of terrorism—in other words, a suspect, all of that suspect's contacts, and all of their contacts. The bill makes only surface fixes and "absolutely allows for the kind of collection that is already happening right now," according to Amie Stepanovich, the director of the Electronic Privacy Information Center's (EPIC) Domestic Surveillance Project.
The legislation would also expand the NSA's surveillance powers, giving it new authority to tap the cell phones of non-Americans believed to be living outside of the U.S., but who enter the country. The NSA would have 72 hours to track these cell phones. It would also impose a 10-year prison sentence on any unauthorized person who accesses NSA information, a Snowden penalty, basically. Feinstein's bill has a few weak reforms, mostly dealing with the FISA court, allowing it to hear amicus briefs in certain cases (though it already does have that authority and has used it on some occasions) and authorizes a report from the Court to Congress about its decisions. That's not a release of decisions, but rather a report on decision.
This isn't reform. This is about as bad the FISA Amendments Act of 2008 which retroactively legalized warrantless wiretapping and gave all the telecomms who helped conduct it retroactive immunity. It's an attempt to sweep all of the abuses recently brought to light under the rug of legality. The icing on this Feinstein cake is that all of the committee meetings about this bill, indeed the committee meeting in which it was passed, were conducted in secret. Ironic for a bill that Feinstein says is intended to increase transparency in surveillance programs.
Sen. Patrick Leahy (D-VT) has been working with Rep. Jim Sensenbrenner (R-WI) on legislation also introduced last week that does include real reform. It would end the bulk collection of data, require the government obtain court orders before it could use the information collected on Americans, create transparency allowing communications providers to disclose information about the orders they've received from the NSA, make FISA court orders since 2003 public, and create a public advocate for the FISA Court. Feinstein has vowed to kill this actual reform legislation.
