Draft bill would allow collection of electronic communications records based only on ‘reasonable articulable suspicion’
The House intelligence committee is circulating a draft bill that would permit the government to acquire the phone or email records of an “individual or facility” inside the US for up to a year.
The move by the House intelligence committee’s leadership – the Republican chairman Michael Rogers of Michigan and Democrat Dutch Ruppersberger of Maryland – would significantly prohibit mass surveillance of all Americans’ phone data, a shift in position by two of the most stalwart congressional defenders of the practice. It comes as the New York Times reports that Barack Obama will propose ending bulk collection.
Obama’s self-imposed deadline on revamping the National Security Agency’s collection of bulk domestic phone data is set to expire on Friday.
The bill, titled the End Bulk Collection Act of 2014 and currently circulating on Capitol Hill, would prevent the government from acquiring “records of any electronic communication without the use of specific identifiers or selection terms,” some 10 months after the Guardian first exposed the bulk collection based on leaks by the whistleblower Edward Snowden.
But the bill would allow the government to collect electronic communications records based on “reasonable articulable suspicion”, rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power.”
A draft of the bill acquired by the Guardian proposes the acquisition of such phone or email data for up to a year and would not necessarily require prior approval by a judge. Authorisation of the collection would come jointly from the US attorney general and director of national intelligence.
The NSA or the FBI would not be able to collect the content of those communications without probable cause.
Nor does the House intelligence committee’s draft bill require phone companies or any other private entity to store bulk phone records on behalf of the NSA – a proposal that has met with stiff opposition from the telecom companies. In essence, the draft bill gets rid of bulk collection, but makes it easier for government authorities to collect metadata on individuals inside the US suspected of involvement with a foreign power.
The House intelligence committee proposal represents competition to a different bill introduced last fall by privacy advocates in the Senate and House judiciary committees known as the USA Freedom Act.
That bill, which has 163 co-sponsors in both chambers, does not lower the legal standard for data collection on US persons, and would prohibit the NSA from searching for Americans’ identifying information in its foreign-oriented communications content databases, something the House intelligence bill would not.
A spokesperson for the House intelligence committee did not immediately respond to a request for comment on Monday.
Rogers and Ruppersberger have scheduled a press conference on Tuesday morning to discuss what they described in a release as “Fisaimprovement legislation” – a reference to the seminal Foreign Intelligence Surveillance Act of 1978, which their bill would amend.
While a judge would not necessarily review the collection of a US individual’s phone or email records ahead of time, the House intelligence committee bill would require judicial review of the collection procedures and associated privacy protections to “reasonably limit the receipt, retention, use and disclosure of communications records associated with a specific person when such records are not necessary to understand foreign intelligence information or assess the importance of such information”.
A telecom or internet service provider could challenge the collection order before the secret Fisa court under the House intelligence committee proposal. The court would also have latitude to reject challenges “that are not warranted by existing law or consists of a frivolous argument for extending, modifying or reversing existing law or for establishing a new law”, and to impose contempt of court penalties for noncompliant companies.
The attorney general and the director of national intelligence would have to “assess compliance with the selection and the civil liberties and privacy protection procedures” associated with the collection every six months, and submit those assessments to the Fisa court and the intelligence and judiciary committees of the House and Senate.
Additionally, and in keeping with an October proposal from Senate intelligence committee chairwoman Dianne Feinstein of California, the House intelligence committee proposal would permit the NSA to continue surveillance for 72 hours on a suspected foreigner’s communications content if that person enters the US.
The House intelligence committee proposal contains provisions embraced by critics of widespread NSA surveillance. It would create a privacy advocate before the Fisa çourt; mandate additional declassification of Fisa court rulings; require the Senate to confirm the NSA director and inspector general.
It also requires annual disclosure of the number of times “in which the contents of a communication of a United States person was acquired under this Act when the acquisition authorized by this Act that resulted in the collection of such contents could not reasonably have been anticipated to capture such contents.”
But in a sign of the continuing contentiousness on Capitol Hill over changes to NSA surveillance, James Sensenbrenner, a Wisconsin Republican and co-author of the USA Freedom Act, preemptively rejected the House intelligence committee proposal, calling it “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law.
“It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA Freedom Act and do not strike the proper balance between privacy and security,” Sensenbrenner said in a statement late on Monday.
On Friday, the Obama administration and the intelligence agencies will face the expiration of a Fisa court order for bulk domestic phone records collection. That expiration represents a deadline imposed by Obama in January for his administration to come to reach consensus on the specific contours of post-NSA phone metadata collection.
According to a New York Times report late on Monday, Obama will propose ending bulk phone data collection and replacing it with individualised orders for telecom firms to provide phone records up to two “hops” – or degrees of separation – from a phone number suspected of wrongdoing. The effort goes further towards the position favoured by privacy advocates than Obama proposed in January. Obama will request the Fisa court bless the current bulk collection program for a final 90-day renewal as he attempts to implement the new plan, the Times reported.
The White House declined to comment on Monday about either the End Bulk Collection Act or the USA Freedom Act.