Our Privacy and Liberty Still at Risk, Even if Leahy NSA Bill Passes

Elizabeth (Liza) Goitein

After a brief hiatus, legislative reform of the NSA’s bulk collection program appears to be back on track. Thanks to skillful negotiations on the part of Senator Patrick Leahy, Democrat of Vermont, and other cosponsors, the version of the USA Freedom Act that was unveiled in the Senate last week restores many of the protections that House leadership and administration officials stripped out of the House version in secret, last-minute talks.

Most notably, the Senate bill clearly would prohibit the bulk collection of Americans’ telephone records and other types of information.

And yet, even if the Senate version becomes law, Americans’ private information will remain vulnerable–under both the domestic programs addressed by the bill and other, much larger, programs nominally targeted at foreigners. As Leahy acknowledged when introducing the bill, much more remains to be done to protect the privacy and civil liberties of law-abiding Americans.

The good news first: The Senate bill would require any collection of business records to be based on a “specific selection term,” such as a name or account, that narrowly limits the scope of collection “to the greatest extent practicable.” The bill includes a non-exhaustive list of selection terms that are deemed too broad, including area codes, zip codes, and names of telecommunications companies.

The Foreign Intelligence Surveillance Court (FISA court) would have to approve the selection terms in advance and assess whether the records would be relevant to an authorized investigation. These provisions would not only end the NSA’s bulk collection of telephone records; they would preclude any analogous program for Internet, financial, or credit records.