Lawmakers Scrutinizing Electronic Surveillance in Wake of NSA Spying Leak
Reform of the nation’s electronic privacy laws will move forward this Congress while lawmakers wrestle with recent reports of broad government surveillance of Americans’ telephone and computer activity, said senior aides to the House and Senate Judiciary committees, during a Monday panel at the NCTA Cable Show. Last week the Guardian newspaper published an order by the Foreign Intelligence Surveillance Court that gave the National Security Agency authority to collect phone data from millions of Verizon subscribers (CD June 7 p1). Aides to lawmakers on the House and Senate Commerce committees on a separate panel also said the FCC’s management of the spectrum incentive auctions will continue to be a major focus for their committees.
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There’s a “rough road ahead” for legislation on electronic surveillance, said Nick Podsiadly, Senate Judiciary Committee minority counsel to Ranking Member Chuck Grassley, R-Iowa. Updating and expanding the Communications Assistance for Law Enforcement Act is an “impossible sell” given the “current state of play in the public sphere these days on electronic surveillance,” Podsiadly said. Electronic surveillance laws are a “tricky issue these days,” said Branden Ritchie, House Judiciary Committee deputy chief of staff and chief counsel to Chairman Bob Goodlatte, R-Va. “There are a lot of developments happening now and we want to take a hard look at it and study it before we make decisions about what to do about it and when,” Ritchie said. “There has to be some wrestling with how these issues fit together,” said Perry Apelbaum, House Judiciary Committee minority staff director to Ranking Member John Conyers, D-Mich. Considering the events of the last week, “it looks like [law enforcement agencies] already have their access to the back end of social media sites,” he said.
Reform of the Electronic Communications Privacy Act is likely to advance this Congress, panelists said. Goodlatte “definitely thinks the law needs an upgrade,” said Ritchie. “We have spoken with [Senate Judiciary Committee Chairman Pat Leahy, D-Vt.,] about this and the chairman wants to work on a bipartisan, bicameral fashion,” he said. Apelbaum said the issue is one “I would hope and expect to get across the finish line this Congress.” Privacy advocates recently said revelations about the NSA’s monitoring of Americans could rally congressional support for ECPA reform (CD June 10 p5).
Goodlatte is taking a “cautious approach” to oversight of the Department of Justice’s collection of reporters’ phone records, said Ritchie. “We need to do a lot of digging into what has happened,” he said. “It seems like every day there is a new revelation with regard to what has happened with federal law enforcement and the media.”
Senior aides on the House and Senate Judiciary committees said members had not set a definitive timeline to address the December 2014 expiration of the Satellite Television Extension and Localism Act (STELA) but said there will be a number of hearings to examine the issue. “We don’t have any hard dates for when we start hearings” but the committee “would start with some oversight hearings,” said Ritchie. The Senate Judiciary Committee will likely “get to the meat of the legislation next year,” said Aaron Cooper, Leahy’s chief intellectual property counsel. During previous reauthorizations of the bill Congress “has done a good job … of making sure the law advances the interest of consumers … while at the same time balancing the needs and protections of the content industry,” he said.
Spectrum policy will be a major topic of the forthcoming confirmation hearing for FCC chairman nominee Tom Wheeler and the yet-to-be-named Republican nominee to replace former Commissioner Robert McDowell, said aides to Commerce Committee Chairman Jay Rockefeller, D-W.Va., and Ranking Member John Thune, R-S.D. Thune’s Communications Policy Director, David Quinalty, said the upcoming spectrum auctions are a “big area where Republicans want to make sure the FCC is going the right path on.” Thune is generally interested in “making sure the FCC is taking an approach to today’s marketplace rather than outdated modes of thinking that were perhaps relevant 10 years ago,” he said. Rockefeller’s senior counsel, John Branscome, said that in addition to the spectrum auctions the chairman is interested to hear Wheeler’s thoughts on consumer protection, media ownership, programming issues and costs and management of the Universal Service Fund.
Cybersecurity will continue to be a focus for members of the House and Senate Commerce committees, panelists said, though none would specifically address recent press reports of federal monitoring of Americans’ telephone calls and computer systems. Branscome said Rockefeller is focused on passing legislation that will codify some elements of President Barack Obama’s cybersecurity order, but a strategy to do so has not yet materialized. “The best thing we can do is focus on the development of voluntary cybersecurity standards” with the National Institute of Standards and Technology, he said. Neil Fried, chief counsel to the House Communications Subcommittee Chairman Greg Walden, R-Ore., said he remains wary of federal attempts to regulate critical infrastructure.
Sen. Mark Pryor, D-Ark., is planning the last of his Communications Subcommittee’s “state of” hearings to examine the wireline market “sometime in late July,” said Kristin Sharp, Pryor’s legislative director. Sharp added that the subcommittee will likely consider the nation’s broadband adoption after the August congressional recess.