As the Senate continues mulling the way forward on surveillance reform with less than week until a major deadline, Sen. Dianne Feinstein (D-Calif.) has introduced legislation that she hopes will gain more traction than the leading reform bill.
To the dismay of privacy advocates, however, her approach to reauthorizing the USA Patriot Act, the law at the center of government surveillance, eliminates many of the modest reforms found in the leading option, the USA Freedom Act, which passed the House and narrowly failed a recent Senate vote. Key provisions of the Patriot Act will expire at midnight on June 1, including Section 215.
Feinstein’s bill, introduced as S.1469, does end the government’s Section 215 bulk phone-records program, which a federal court recently ruled was illegal and which the National Security Agency (NSA) has begun winding down ahead of its June 1 sunset. But the bill scraps reforms to the Foreign Intelligence Surveillance Court (FISC), which approves government requests for warrants to access collected data.
One of the USA Freedom Act’s FISC transparency measures requires the declassification of certain court opinions. Another reform addresses the gag orders that accompany the National Security Letters that the government sends to companies demanding user data. These and other reforms are absent in the Feinstein bill.
Feinstein’s bill also adds a requirement that phone companies keep customer records for two years to ensure they are available for government requests. The companies already collect these records for business purposes, including customer billing, but senior administration officials said recently that there is no legal requirement that they either collect or retain the data.
Feinstein, the former chairwoman of the Senate Intelligence Committee, has been a stalwart ally of the intelligence community, often shielding it from aggressive oversight efforts by other committee members, including Sen. Ron Wyden (D-Ore.). Her bill is seen as an attempt to gain more Republican support for surveillance reform, following an early Saturday morning session in which the USA Freedom Act fell three votes short of a procedural step needed for passage.
A spokesman for Sen. Mike Lee (R-Utah), the USA Freedom Act’s chief Republican sponsor, welcomed Feinstein’s bill, tying it into the larger amendment process.
“We would love for Sen. Feinstein to bring her bill up as an amendment to the USA Freedom Act, which is why we asked the Senate for unanimous consent to begin debate on the bill last Tuesday,” Conn Carroll, Sen. Lee’s communications director, told the Daily Dot. “Sens. Paul and Wyden also deserve votes on their amendments as well. We still believe that an open amendment process, even though we are running out of time, is the best way to move forward.”
Although Feinstein’s bill ends the government’s bulk collection of phone records just like the USA Freedom Act, it is attracting fierce criticism from the left for excising other reforms in the name of expediency.
“It’s hard to see who this bill is designed for,” said a Senate Democratic staffer.
A Wyden aide told the Daily Dot that the senator had “serious concerns with” Feinstein’s bill.
“The USA Freedom Act is clearly the most viable path for surveillance reform,” the aide said.
“The bill is significantly weaker than the the reform bill being considered by Congress, which we believe needs to be strengthened to provide meaningful reform,” said Neema Singh Guliani, a legislative counsel at the American Civil Liberties Union.
Guliani pointed to the way the draft version of the bill defined the search term that government must use to request data, known as a “specific selection term.” Feinstein’s bill, she said, “inadequately limit[s] the government’s ability to engage in broad surveillance” by weakening the definition of a specific selection term.
Guliani also called the draft bill’s requirement that phone companies hold customer data for two years “both costly and antithetical to notions of privacy.”
“Overall,” she said, “though the bill is labeled a ‘reform bill,’ it fails to adequately address the concerns of the public and puts in place concerning new data retention requirements.”
Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, said Feinstein’s bill was “neither an alternative nor a compromise.” Feinstein introduced a similar bill last year, he said, but it “never made it for a vote in the Senate…and saw fierce objections from privacy advocates.”
“The Senate has two options: to Sunset section 215 or to pass the USA Freedom Act,” Jaycox said. “We’ll see which one they choose on Sunday.”
“Senator Feinstein’s bill is the veneer of reform that does not solve any of the severe problems raised in the past two years,” said Harley Geiger, senior counsel and advocacy director at the Center for Democracy and Technology.
Geiger added that the bill “would undo nearly all the House of Representatives’ work to end bulk collection and strengthen transparency by passing the USA Freedom Act…and is a disservice to Americans, who overwhelmingly favor restrictions on the government’s surveillance power.”
Other privacy advocates say even the USA Freedom Act falls short of necessary reform.
“Congress needs to clear the legislative slate and start a thorough investigation of mass surveillance practices by the NSA and other intelligence agencies,” said Tim Karr, senior director of strategy at Free Press, a privacy group that opposes the USA Freedom Act and wants Section 215 to expire. “Any new legislation must correct the recent history of abuses and restore balance between our civil liberties and national security.”
A spokeswoman for Sen. Rand Paul (R-Ky.), who supports letting Section 215 expire and recently staged a marathon filibuster on the subject, declined to comment on Feinstein’s bill.
Illustration by Max Fleishman