November 18, 2014 5:53PM

Strange Bedfoes against NSA Reform Bill

The push to rein in the authorities of the National Security Agency—covertly expanded by a secret court to permit indiscriminate bulk collection of Americans' communications  and financial records—has become a truly bipartisan affair. In a way, this is nothing new: Liberals who recall the abuses of the Hoover era have long teamed with conservatives skeptical of government power in efforts to check excessive surveillance.  With a Senate vote looming to move forward with the USA FREEDOM Act, however, a still stranger mix of opponents is seeking to block what has emerged as the primary vehicle for intelligence reform in the post-Snowden era.

First, and least surprising, there's the "More Catholic than the Pope" contingent—boosters of the intelligence community who seem convinced that the bill will somehow put Americans at risk, despite the insistence of Director of National Intelligence James Clapper that the proposed safeguards would not hinder intelligence operations. This stance is exemplified by a stunningly misleading Wall Street Journal op-ed penned by former Attorney General Michael Mukasey and forrmer NSA head Michael Hayden. Since the terrorist Islamic State group, or ISIS, is currently in the headlines, naturally it is invoked to tar the bill as "a reform that only ISIS could love."  Never explained: Why, precisely, we should expect an authority to indiscriminately sweep up domestic telephone records to be a critical tool for monitoring a group that seems primarily concerned with consolidating its power overseas, not fielding operatives in the United States.  After all, even when it comes to domestic investigations—where one might have expected the NSA's mass database to show its value—two independent review groups with full access to classified records have concluded that the program had little or none.  Incoming Senate majority leader Mitch McConnell has described the reforms as "tying our hands behind our back"—but a hand is a useful appendage.  On the public record, "tying our hair back" might a be more apt description—the bulk database has obscured the FBI's by flooding the Bureau with dead-end "tips," while any truly pertinent information it provided was invariably duplicative of records that agents had already obtained using traditional, targeted authorities.

Yet the USA FREEDOM framework actually preserves the core capabilities of this ineffective program: It creates a new mechanism for the government to do "connection chaining" by quickly and continuously obtaining, from multiple phone carriers, the records of suspected terror affiliates and their contacts. Mukasey and Hayden falsely decribe the new process as requiring a "warrant"—which it does not, on the consensus legal understanding that a "warrant" is a particularized authority based on the Fourth Amendment's relatively high evidentiary standard of "probable cause."  They also, somewhat comically, describe it as requiring the government go "scurrying" to telecomunications providers to "comb through" records, presumably by consulting a card catalogue.  Yet the point of the new framework, with a mandate that carriers provide "technical assistance" to NSA, is precisely to ensure that carriers can rapidly search their files to provide information about numbers once the secret FISA court has signed off (or, indeed, in advance of the court's approval in an emergency).  Nor, indeed, do Mukasey and Haden so much as mention "National Security Letters," a separate tool that can be used to obtain certain types of communications records without any judicial involvement. Unfortunately, the USA FREEDOM Act does not implement the recommendation of the President's Surveillance Review group that these, too, require court authorization. Nor, conspicuously, does their tendentious discussion of the various safeguards currently in place mention the numerous massive and systemic violations of the rules imposed by the FISA court—violations that easily passed undetected for years precisely because NSA itself maintained the database rather than making particularized requests to carriers through the FISA court.

In short, the bill doesn't really affect the government's capabilities, only the way they're implemented.  First, phone numbers to be searched will have to be specifically approved by the FISA Court—as Congress expected would be the case when it approved these authorities, and as has already been required since Februrary under a presidential directive.  Second, NSA will quickly obtain particular records, corresponding to "specific selectors" like phone numbers or other account identifiers, by passing its search queries to the carriers who already maintain those rather than compiling its own massive database, overwhelmingly consisting of irrelevant data about innocent people. This ought to be a pure win: A privacy protective re-architecting that reduces the potential for abuse without meaningfully interfering with the government's ability to obtain the information in which it has a legitimate interest.   Which, of course, is why current intelligence officials have characterized the reforms as reasonable. Retired officials—the ones who implemented the bulk program and insisted its vast invasiveness was absolutely necessary—may be reluctant to admit they've been proven wrong, but their stubbornness does not amount to much of an argument.

More surprising, perhaps, is the opposition from NSA critic and civil libertarian Sen. Rand Paul (R-KY), who feels the bill doesn't go far enough in reining in government surveillance.  I'm inclined to agree with that view—as are numerous other senators who plan to support the bill while offering amendments to strenghten it—but it's hard to see how blocking this particular set of reforms makes it any more likely that other important changes to the law will be passed. Ending the bulk collection of communication records under one group of authorities may only be the first step on a long road to more comprehensive surveillance reform, but taking that step enables privacy groups and civil libertarian legislators to devote their full focus to building consensus around subsequent steps, like amending (if not eliminating) the general warrant authority created by §702 of the FISA Amendments Act of 2008.

Sen. Paul's primary objection thus far has been that the USA FREEDOM Act "reauthorizes the PATRIOT Act," which is rather misleading. The vast majority of the PATRIOT Act is, alas, permanent and in no need of reauthorization. Three provisions will, in fact, expire in 2015: The §215 business records authority under which the NSA's bulk telephony program is operating, the never-used "lone wolf" provision blessing the use of intelligence tools against foreigners suspected of terrorism but unaffiliated with any larger group, and the "roving wiretap" authority giving analysts discretion to intercept a target's communication across multiple communications channels without specifying them in advance to a court. The USA FREEDOM Act would, of course, overhaul the first authority while extending all three until 2017, aligning their sunset dates with the expiration of the §702 general warrant authority, and allowing these interdependent surveillance powers to be discussed and debated together.  By far the most significant of the expiring authorities is §215—yet history suggests that even if it were to expire, intelligence agencies could shift their current programs to one of the permanent authorities, such as the §214 "pen register/trap-and-trace" provision or the aforementioned National Security Letters, with largely cosmetic changes. The one other authority that has actually been used—roving wiretaps—ought indeed to be amended, but should probably not be entirely eliminated. So it would be more accurate to say that the USA FREEDOM Act involves a short extension of three Patriot Act provisions, but substantially reforms the one that's actually important, while fixing several overlapping authorities that don't expire in the bargain.

While Paul is motivated by an admirable regard for liberty and privacy, his arguments against this particular package of reforms stand up to scrutiny only slightly better than those of the cheerleaders for bulk surveillance.