Making Sure NSA Reform Isn’t Caught in the Gears of the D.C. Machine

Congress has been poised to move on powerful legislation to reform the NSA for months, so what’s slowing things down?

It’s been over ten months since the Guardian published the first disclosure of secret documents confirming the true depths of NSA surveillance, and Congress has still not touched the shoddy legal architecture of NSA spying.

There have been myriad NSA bills presented in Congress since last June. None of them are comprehensive proposals that fix all the problems. Many of them seem to be dead in the water, languishing in committee.  

However, several proposals remain contenders. Some are deceptive fake fixes, disguised as reform while attempting to further entrench dragnet surveillance, while some of them are an excellent starting point for real change.

Fake fixes to NSA dragnet surveillance are masquerading as real reform

The two fake fix proposals include the FISA Improvement Act (S.1631), which was written by the chair of the Senate Intelligence Committee, Dianne Feinstein, and the FISA Transparency and Modernization Act (H.R. 4291), which was written by the chairs of the House Intelligence Committee. These bills don’t just put lipstick on a pig; they actually create new legal authority for NSA spying while providing political cover to its biggest supporters. And they come as no surprise from Intelligence Committee leaders who have staunchly defended the NSA's programs.

Senator Diane Feinstein’s FISA Improvements Act (FIA) codifies some of the worst interpretations of the Foreign Intelligence Surveillance Act (FISA), one of the laws governing the NSA's spying. Among other issues, the bill would codify the government’s bad interpretation of Section 702 of FISA. The NSA uses Section 702 to justify mass collection and warrantless searches of legalizing of calls and emails. It includes minimal transparency requirements. Introduced by one of the NSA’s biggest defenders, this bill was marked up in secret and passed out of the Senate Intelligence Committee in December of 2013. Fortunately, the FIA hasn’t been voted on, and it has no cosponsors and no companion bill in the House.

The FISA Transparency and Modernization Act, meanwhile, creates a new surveillance regime—while again making only minimal changes to Section 215, which allows bulk collection of telephone metadata. The bill could allow the government to send orders for production of communications records directly to electronic communication service providers without any judicial approval. The bill is still in committee, but it potentially represents more of a threat than the FIA. It has 12 cosponsors, all of whom are hard line NSA supporters. 

If you have any doubt about how bogus the FISA Transparency and Modernization Act is, read the op-ed that Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) wrote in support of their bill. They assert that bulk metadata collection “could have prevented 9/11,” ignoring the analysis from both the Privacy and Civil Liberties Oversight Board and the President’s Review Group that suggests that this data has little, if any, security value. They also write that their “bill seeks to restore the American people's confide