Senate Committee Backs Bill That Would Allow NSA Data Collection to Continue

By Spencer Ackerman and Dan Roberts, Guardian UK

01 November 13

Legislation would provide increased transparency but NSA critics in Congress say proposals don't go far enough

he Senate intelligence committee approved a bill on Thursday that would provide for increased transparency of the National Security Agency's bulk collection of US phone records but allow the controversial practice to continue.

Sponsored by chairwoman Dianne Feinstein, the bill lets the NSA continue to collect phone metadata of millions of Americans for renewable 90-day periods, and allows the government to retain it. Some legislators have alternatively proposed letting phone companies hold the metadata. It passed the committee by an 11-4 vote Thursday afternoon, paving the way for a full Senate vote.

Further codifying current practice, the bill allows analysts to search through the data when if they suspect there is a "reasonable articulable suspicion" that a suspect is associated with international terrorism.

Additionally the bill adds new leeway for the NSA to continue surveillance begun on foreigners outside the US if they enter the country "for a transitory period not to exceed 72 hours".

The bill is a direct challenge to one introduced Tuesday by senator Patrick Leahy that would end domestic phone-records collection. It was also opposed by leading intelligence committee member Mark Udall, who said it did not go far enough.

"The NSA's invasive surveillance of Americans' private information does not respect our constitutional values and needs fundamental reform, not incidental changes. Unfortunately, the bill passed by the Senate intelligence committee does not go far enough to address the NSA's overreaching domestic surveillance programs," Udall said.

Another Democratic member of the committee, Ron Wyden, said the bill maintains "business as usual" and "remains far from anything that could be considered meaningful reform".

Feinstein defended the NSA bulk collection program, but said there was a need to rebuild public trust. "The NSA call-records program is legal and subject to extensive congressional and judicial oversight, and I believe it contributes to our national security," she said in a statement. "But more can and should be done to increase transparency and build public support for privacy protections in place."

In her statement, Feinstein said the bill would also make a number of improvements to transparency and oversight on the NSA, including:

• Requiring an annual public report of the total number of queries of NSA's telephone metadata database and the number of times the program leads to an FBI investigation or probable cause order.


• Requiring that the foreign intelligence surveillance court impose limits on the number of people at NSA who may authorise or query the call-records database.


• Establishing criminal penalties of up to 10 years in prison for intentional unauthorized access to data acquired under the Foreign Intelligence Surveillance Act (Fisa) by the United States.


• Mandating the Fisa court impose a limit on the number of contacts (or "hops") an analyst can receive in response to a query of bulk communication records.

After the committee's hearing had ended, Feinstein strongly endorsed the NSA's main domestic program. "I think there's huge misunderstanding about this NSA database program, and how vital I think it is to protecting this country," she told reporters.

Concern over the intelligence committee's bill was expressed by independent legal experts who said the stage was now set for a showdown with the USA Freedom Act, a bill introduced by Leahy and Jim Sensenbrenner that would prohibit bulk collection of Americans' telephone records.

Elizabeth Goitein of the Brennan Center for Justice said: "The intelligence committee bill and the USA Freedom Act present two opposing visions of the relationship between law-abiding Americans and the national security state. The fundamental question is: should the government have some reason to suspect wrongdoing before sweeping up Americans' most personal information to feed into its databases? Leahy and Sensenbrenner say yes; Feinstein says no."

Wyden suggested that recent concern about NSA spying on foreign leaders had distracted from the real focus on mass domestic surveillance in the US. "The statements that American intelligence officials have made this week about collecting on the intentions of foreign leadership, that's consistent with the understanding I've had for years, as a member of the intelligence committee," he said.

"That has implications for foreign policy. My top priority is ending the mass surveillance, digital surveillance, on millions and millions of law-abiding Americans."

Feinstein unexpectedly announced on Monday that she was "totally opposed" to the foreign leader spying of the sort the NSA conducts of German chancellor Angela Merkel. Feinstein has been a staunch supporter of the NSA's bulk collection of Americans' phone records.

"Americans are making it clear, that they never - repeat never - agreed to give up their constitutional liberties for the appearance of security," Wyden said. "We're just going to keep fighting this battle. It's going to be a long one."

Separately, Feinstein said that James Clapper, the director of national intelligence, had agreed to provide her in writing with a statement about a Washington Post story that alleged the NSA had intercepted data in transmission between Google and Yahoo data centers. She said she was withholding judgment on the story until she saw Clapper's rebuttal.

Her strong endorsement of the domestic phone records collection indicates that the powerful Senate Democrat is not yet prepared to expand the criticism of the NSA she launched on Monday, when she "totally opposed" its surveillance of foreign allied leaders - a more traditional intelligence activity than bulk phone metadata surveillance.

Wyden would not comment on the Washington Post report on the Google and Yahoo intercepts. But the senators suggested it had implications for the privacy of Americans' communication.

"Decades ago, countries had their own kinds of communication systems. Now that you've had the merger of global communications, I think you're going to have a lot more challenges spying on foreigners with implications for US citizens," Wyden said.

Following the markup of the bill, the intelligence panel held a classified hearing. Clapper and his chief counsel, Robert Litt, were seen entering the Hart Senate office building ahead of the markup and the hearing. Clapper refused to comment.