There is broad agreement in Congress that something needs to be done to reign in the excesses of the National Security Agency in their methods of intelligence gathering.
The problem is, that beyond some cosmetic fixes, there is no consensus for how to protect the private information of American citizens.
While the committee billed the FISA (Foreign Intelligence Surveillance Act) Improvements Act of 2013 as a means to increase “privacy protections and public transparency of the National Security Agency call-records program,” the 15-member panel narrowly defeated a series of amendments senators offered proposing stricter reforms.
One of the reforms—a three-year cap on the retention of telephone records in the main database—went down, 7-8, even though it had the support of Chairwoman Dianne Feinstein (D-Calif.) The amendment failed in a party line vote where Sen. Angus King of Maine, an independent who caucuses with the Democrats, joined the GOP to kill the amendment.
The court orders regulating the call-tracking program currently allow the NSA to collect up to five years-worth of call data. Language in the bill the panel approved adopts that five-year limit as a matter of law, but would allow searches of the two oldest years of data only with the approval of the attorney general.
Another 7-8 casualty in the intel panel mark-up was a provision to ban the bulk collection of cell-site information that can show where a caller is physically located at the time of making or receiving a call. The NSA has acknowledged running experiments to handle such data, but says it isn’t collecting it now. Most panel Democrats supported the geolocation data ban, and most Republicans opposed it, but some crossed the lines. Feinstein and Sen. Barbara Mikulski (D-Md.), whose state is home to the NSA, voted against the ban. Sen. Susan Collins (R-Maine) voted for it.
The third proposed reform to fall 7-8 was an amendment by Sen. Ron Wyden (D-Ore.) to require that any Foreign Intelligence Surveillance Court decision finding a violation of the Constitution be made public. Again, most Democrats supported the proposal, while most Republicans opposed it. This time, Feinstein and Sen. Jay Rockefeller (D-W.V.) bucked their Democratic colleagues. Collins joined with six Democrats in favor of the transparency mandate.
Even the panel’s 11-4 vote on the overall reform package may be more complex than it might have initially appeared. The committee’s Oct. 31 press release didn’t disclose who voted no, but Wyden, Sen. Mark Udall (D-Colo.) and Sen. Martin Heinrich (D-N.M.) quickly acknowledged they opposed the legislation as insufficient. The three have also called for an outright ban on the bulk-collection programs.
Clearly, some Senators talk a good privacy rights game but when getting down to the nitty gritty of actually codifying those concerns into law, they are falling short. The defeated amendments are mostly modest improvements that don’t put any significant roadblocks in the way of the NSA doing its job.
Real reform was probably not going to happen in the Intelligence Committee anyway, where most members were chosen because they support a broad definition of our efforts at gathering information. A better chance for Congress to put its foot down will happen when the Senate Judiciary Committee takes up legislation that would actually ban the call-tracking program altogether. That bill faces an uncertain future, but has the advantage of being supported by Committee Chairman Pat Leahy and intel committee chairman Diane Feinstein who also sits on the Judiciary Committee. Politico adds, “At least a couple of other members of that panel want to shutter the program, but there appears to be a broader consensus for more modest, transparency-oriented reforms and perhaps for some of the measures narrowly rejected by the intelligence committee.”
The House is expected to be far tougher on the NSA than the Senate when they take up reform legislation later next year.