‘Loophole-Laden’ NSA Bill Passes The House

Nearly a year after Edward Snowden's leaks blew the lid off the National Security Agency's sweeping spying programs, Congress has taken its first significant step to halt the government's mass collection of Americans' phone records.

With bipartisan support, the House on Thursday passed the USA Freedom Act, a White House-backed bill that its supporters say will end the government's indiscriminate bulk collection of Americans' phone records. It cleared the chamber on a 303-121 vote.

Tech companies and privacy advocates, however, are sounding the alarm about the bill, which underwent substantial eleventh-hour changes this week. They say it contains a number of loopholes and vaguely defined provisions that the government could use to maintain its current spy powers. The measure will now move to the Senate for review, where powerful lawmakers have also noted concerns about the House's version.

Under the legislation, the government would no longer retain bulk collection of phone metadata—the numbers and timestamps of calls but not their actual contents. Instead, phone companies will keep those records and be required to hand them over to the NSA and other intelligence agencies only after the government receives approval for each data search from the Foreign Intelligence Surveillance Court, except in emergency cases.

The measure also reduces from three to two the number of "hops," or degrees of separation, away from a suspected target the NSA can jump when analyzing communications. The amended language, however, dropped a provision that would have allowed companies to disclose the level of surveillance orders received under Section 702 of the Foreign Intelligence Surveillance Act, and it codifies a two-year delay for making some surveillance orders public.

But the new version of the bill that emerged Tuesday—the product of more than a week of backroom negotiations among House leadership, the White House, and the intelligence community—endured a thorough lashing from tech giants such as Google and Facebook and a number of privacy watchdogs such as the American Civil Liberties Union and the Open Technology Institute.

Drawing particular consternation is the bill's altered definition of "specific selection term," which provides a framework for how intelligence agencies would be required to define their desired targets when conducting a search of phone records. An earlier draft, including one passed two weeks ago by the Judiciary and Intelligence committees, defined selectors as "a person, account or entity." The new bill tacks on words like "address" and "device" to the list and contains language that critics argue could be interpreted loosely.

In addition to worries about phone records, the Reform Government Surveillance Coalition—whose members include Google, Facebook, Apple, and others—expressed concern late Wednesday that the bill could also open "an unacceptable loophole that could enable the bulk collection of Internet users' data."

Rep. Justin Amash, one of the Freedom Act's original cosponsors and a vocal critic of NSA spying, announced Thursday morning he was also voting no on the measure because it "codified a large-scale, unconstitutional domestic spying program" and violated the Fourth Amendment.

While the language would prohibit a telephone company from handing over all phone records to the government, Amash said, it was "so weakened in behind-the-scenes negotiations over the last week that the government still can order—without probable cause—a telephone company to turn over all call records for 'area code 616' or for 'phone calls made east of the Mississippi.'"

Even the bill's author, Rep. Jim Sensenbrenner, said, "I wish this bill did more."

"To my colleagues who lament changes, I agree with you," the Wisconsin Republican, who also authored the post-9/11 USA Patriot Act, said. "To privacy groups who are upset about lost provisions, I share your disappointment. The negotiations for this bill were intense, and we had to make compromises, but this bill still deserves support."

A number of privacy hawks and civil libertarians, such as Reps. Zoe Lofgren and Rush Holt, echoed similar concerns, saying that the bill did not guarantee enough privacy safeguards. They voted no, as did Reps. Anna Eshoo and Doris Matsui, both California Democrats with ties to Silicon Valley.

The Freedom Act was introduced by Sensenbrenner last October and racked up more than 140 cosponsors. It was widely embraced by NSA reformers as the best option from Congress to curtail the government surveillance apparatus, which has undergone unprecedented scrutiny in the wake of the Snowden leaks.

In January, President Obama announced that his administration would reform the way the NSA collects and stores telephone metadata of virtually all Americans. The president also promised further transparency measures and said he wanted to restore the nation's trust in the government's intelligence agencies.

But Obama also said he could not act without first getting a bill from Congress that closely resembled his preferred changes. On Wednesday, the administration officially announced its support for the House-passed Freedom Act.

Senate Judiciary Chairman Patrick Leahy has said his panel will consider the Freedom Act this summer before it heads to the floor. He has expressed a number of concerns about the House bill, such as a lack of reforms related to national security letters, a strong special advocate to work within the FISA Court, and additional transparency measures. Leahy authored the Senate version of the original Freedom Act.

"Today's action in the House continues the bipartisan effort to restore Americans' civil liberties," Leahy said in a statement immediately after the vote. "But I was disappointed that the legislation passed today does not include some of the meaningful reforms contained in the original USA Freedom Act."