Senate should pass the USA Freedom Act

Before Members of Congress leave town to do battle in this fall’s election, the Senate should pass the USA Freedom Act.  This bill would amend the Foreign Intelligence Surveillance Act (or FISA) to end one of the NSA’s most controversial intelligence collection programs: the dragnet collection of U.S. citizens’ phone call records. 

The House passed a version of this bill last May.  But privacy advocates, who initially championed the bill, withdrew their support after amendments that undermined the bill’s privacy safeguards were added before passage.

{mosads}Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is sponsoring the Senate version of the bill. His bill beefs up the privacy protections by ensuring that data collection is targeted.  Unlike the House bill, which would allow the government to collect records by broad categories that could return large swaths of data unrelated to the target of an investigation, the Leahy bill would limit the government’s queries of data to “specific selection terms.” 

The Leahy bill has bipartisan support in the Senate and the backing of Rep. Jim Sensenbrenner (R-Wis.), who sponsored the bill in the House.  Sensenbrenner’s support is significant.  He has a long history of backing expansive intelligence collection authorities and was the principal architect of the PATRIOT Act, which included the “business records” provision that the government relies on for the bulk collection program.

As was reported last year, the government uses the bulk collection program to develop “contact chains” in an effort to discover associations and communications between known and suspected terrorists.  Until recently, the government had argued that it needed all call records in order to determine which ones were useful.  But a program that amasses this information about everyone, including law-abiding citizens, also creates significant privacy risks.

Although metadata do not reveal the contents of communications, when aggregated and mined with sophisticated algorithms, they can expose sensitive information about our social, political, and religious associations and activities.  Call patterns, for instance, can reveal intimate relationships, medical and psychiatric help that someone seeks, the identity of whistleblowers, and more. 

The administration eventually acknowledged that the bulk collection program creates privacy risks.  And it has conceded that the Intelligence Community could achieve its objectives through a less intrusive program.  In a speech at the Department of Justice last January, the President announced that the administration would end the program and would seek alternative intelligence collection methods. 

President Obama can change how his administration operates this program, but only Congress can change the law.  If Congress does not act, a future administration could seek to use FISA to collect not just bulk phone records, but also other kinds of digital “metadata,” such as location information that our phones transmit and other types of transactional records. 

The data that will be potentially available to the government is staggering.  According to the International Data Corporation, the amount of digital information that people generate doubles every two years, with 7.9 zettabytes – an amount equal to 18 million times the amount of information in the Library of Congress – expected by 2015.  What’s more, we are at the dawn of the “Internet of Things,” a new era of connectivity where appliances in our homes and offices, our cars, medical and fitness devices we use, and even our clothing will be equipped with sensors and connected to the Internet. 

As data storage capacity increases and analytical tools improve, the government will be tempted to collect and analyze more data in the hopes of discovering new ways to predict threats to our national security.  But just because the government has the technical capability to collect and analyze unprecedented amounts of personal information does not mean it should.  We must be vigilant in protecting national security, but we also must ensure that our government’s use of new technological tools does not erode the privacy and civil liberties of law-abiding citizens.  

The Leahy bill will ensure that our government’s surveillance efforts are targeted and effective.  The Attorney General and the Director of National Intelligence made that clear earlier this month when they voiced support for the bill, calling it a “reasonable compromise” and stating that it “preserves essential Intelligence Community capabilities.”  Privacy advocates, too, strongly support the bill, as do technology companies.

All of the relevant stakeholders are at the table.  They are in full agreement that the Leahy bill strikes the right balance in protecting national security and civil liberties.  It is time for the Senate to act.

Libin, a partner at Wilkinson Barker Knauer LLP, was the Chief Privacy and Civil Liberties Officer of the U.S. Department of Justice from 2009 to 2012 and was Senate Judiciary Committee Counsel to then-Senator Joe Biden from 2007 to 2009.