The long-delayed legislative effort to rein in the National Security Agency overcame a significant hurdle on Wednesday with the passage of a bill that ends the NSA’s bulk collection of phone metadata, one of the most controversial of the classified programs revealed by former NSA contractor Edward Snowden.
In a 32-0 vote, the House Judiciary Committee passed the USA Freedom Act, a bill that requires the government to seek judicial approval before searching the phone data of Americans under most circumstances and builds more transparency and accountability checks into the Foreign Intelligence Surveillance Court, which oversees the NSA. The author of the bill, Rep. Jim Sensenbrenner (R-Wis.) said he expected the bill to arrive on the House floor by Memorial Day (May 26). Surveillance reform legislation under consideration in the Senate has not yet been voted out of committee.
The bill goes much further in curtailing the NSA’s current spying activities than a separate piece of legislation that is under consideration in the House Intelligence Committee, which would not require the government to obtain court approval for searches of phone data. The author of that bill, Rep. Mike Rogers of Michigan, had long been expected to oppose the Sensenbrenner bill, but he told Foreign Policy Tuesday that recent changes to the legislation constituted a "huge improvement."
The Sensenbrenner legislation doesn’t go as far as hardline civil libertarians had wanted. In particular, the revised version of the bill softens a previous ban on "backdoor searches," or searches of Americans’ data using surveillance authority meant to target individuals outside the country. Still, many privacy advocates hailed its passage as a good first step in the longer term push to shrink the current surveillance state.
"This bans bulk collection of any kind of data or phone records across the intelligence community," Sensenbrenner told a small group of reporters after the markup. "We plugged all the holes on this one."
Besides banning bulk collection, the bill creates a panel of legal experts to ensure that the FISA court considers privacy concerns. It also requires the judicial branch to report annually the number of FISA orders addressed by the FISA court.
The single new amendment to the bill approved on Wednesday would let Internet and phone companies issue reports twice a year about government orders that required them to surrender information on customers. The amendment’s passage marks a victory for Silicon Valley tech firms, which have long chafed at being forced to hand over data without being able to alert their users.
A Judiciary committee aide told Foreign Policy that the bill in its current form follows intense negotiations with senior members of the House Intelligence Committee who will take up Sensenbrenner’s bill on Thursday in a vote that is expected to see the legislation pass. The bill addresses issues under the domain of both the Judiciary Committee and the Intelligence Committee and its adoption by both panels would symbolize strong support for the legislation ahead of a floor vote.
"I believe that we have arrived at a compromise that represents the legitimate consensus of the Congress and the American people," said Rep. John Conyers (D-Mich.), the ranking member of the committee. "I hope that we can come together to pass the meaningful changes outlined in this bill."
It remains to be seen if the bill will win support among hardline civil libertarians or if the bill will change significantly as it’s marked up in the House Intelligence Committee, although sources say the two committees have largely agreed to back the bill passed Tuesday. Rep. Justin Amash (R-Mich.), who’s proven capable of marshalling progressive Democrats and libertarian Republicans behind aggressive NSA reform, has not weighed in on the new legislation.