Privacy Advocates, Senators Question Teeth of Feinstein Surveillance Proposal

But Feinstein’s act “codifies one of the NSA’s most controversial surveillance programs,” said Electronic Frontier Foundation activist Trevor Timm, in a blog post (http://bit.ly/1dYV9Il). “We urge you to call your Senator to oppose Sen. Feinstein’s disingenuous bill.” He slammed it as an “NSA entrenchment bill” and said “its real goal seems to be to just paint a veneer of transparency over still deeply secret programs.” Center for Democracy & Technology Senior Counsel Greg Nojeim also criticized the proposal for authorizing the bulk collection of phone records. It “gives the imprimatur of Congress to the bulk collection of Internet metadata as well,” Nojeim said in a statement. “The modest improvements it makes are far outweighed by the damage it does to civil liberties."

"The key is getting a bill through [Senate] Judiciary and seeing how this shapes up,” American Civil Liberties Union Legislative Counsel Michelle Richardson told us. The narrowness of the Feinstein bill’s privacy protections -- focusing mostly on phone records -- surprised her, she said. “We're incredibly disappointed to see they're just ratifying the current practice,” Richardson said. “It’s clear they're trying to preserve the program.” It’s disappointing the bill didn’t propose fewer hops that NSA analysts can query, she said. The ACLU will start doing deeper analysis on Feinstein’s bill text now, she said.

The bill ratifies the status quo, CDT President Leslie Harris said Friday. “Everybody, companies and advocates alike, must be united in their opposition to this bill, and turn their attention to advancing real reform.” Harris called the recent push from tech companies such as Facebook, Google and Apple for FISA changes a “defining moment.”

TechFreedom President Berin Szoka criticized Congress members for “trying to head off real reform at the pass by making minimal concessions on transparency while, at the same time, yet again extending legal authority for surveillance.” He called the move “cynical” but said such concessions often work because members of Congress “don’t want to stick their necks out on complex issues or risk being branded as weak on national security.” TechFreedom backed a recent protest rally in Washington, also supported by CDT, the ACLU and other groups. “As public outrage grows, Congress is finally starting to wake up from 12 years of uncritically accepting the demands of the surveillance agencies,” Szoka told us. “The defenders of blanket surveillance are terrified that Congress might actually restore some of the privacy protections that were systematically gutted after 9/11. They know you can’t fight something with nothing.”

Senate Intelligence members Mark Udall, D-Colo., and Ron Wyden, D-Ore., oppose the bill. Udall slammed its inadequacy, and both he and Wyden unsuccessfully fought to amend it to reflect legislation they introduced with Sens. Richard Blumenthal, D-Conn., and Rand Paul, R-Ky. Sen. Martin Heinrich, D-N.M., was also one of the four Senate Intelligence no votes. He slammed it as an intrusion with the government “collecting the daily telephone activity of millions of innocent Americans -- and leaving the door open to collect information about where they are at any given time,” according to a statement (http://1.usa.gov/18JYaEf).

"The Intelligence committee has passed a bill that ignores this message” that Americans don’t want to give up “constitutionally guaranteed liberties for the appearance of security,” Wyden said (http://bit.ly/HsZYvL). The bill “maintains business as usual” and is “far from anything that could be considered meaningful reform,” codifying “overbroad surveillance practices,” he said.

Both Udall and Heinrich are co-sponsors of the USA Freedom Act, which would end bulk collection of phone metadata. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., introduced that bill earlier last week. Privacy advocates with the ACLU, CDT and EFF largely praised the USA Freedom Act, and Leahy issued a news release Friday emphasizing the bipartisan support. “These two approaches couldn’t be more different,” ACLU’s Richardson told us of the USA Freedom Act and the FISA Improvements Act. She called them “irreconcilable.” Feinstein urged Leahy and Senate Judiciary to review and advance the FISA Improvements Act to the Senate floor soon.

"Senator Leahy looks forward to reviewing [Feinstein’s] legislation,” a Senate Judiciary spokesman told us. “He believes it is time for serious and meaningful reforms, which is why he joined with Congressman [Jim] Sensenbrenner and more than 100 members of Congress in both the Senate and House to introduce the bipartisan USA FREEDOM Act. The Senate Judiciary Committee will continue to look closely at these issues.”

Other committee members spoke favorably of Feinstein’s proposed legislation. Sen. Angus King, I-Maine, touted two amendments successfully integrated into the bill. The first (http://1.usa.gov/16sjUI8) provided for the FISA court to allow amicus briefs to be presented at the court. These could be experts on privacy and civil liberties or technical voices, he said. King called this “a vital step forward in ensuring the legal and technical implications of these programs are scrutinized appropriately.” King authored the amendment with Sens. Susan Collins, R-Maine, Mark Warner, D-Va., and Barbara Mikulski, D-Md. EFF’s Timm lauded that aspect of the bill and its call for an authorized report to Congress summarizing significant FISA court opinions. Timm called them “minor improvements.” In another successful amendment, the two Maine senators also strengthened the Privacy and Civil Liberties Oversight Board authorities over the NSA, King noted (http://1.usa.gov/1aiiFbO).

Sen. Dan Coats, R-Ind., claimed credit for an approved amendment creating an independent NSA inspector general, which would have to be appointed by the president and approved by the Senate. Collins, Udall, Mikulski and Sen. Tom Coburn, R-Okla., backed the amendment with Coats.

Sen. Jay Rockefeller, D-W.Va., commended the Feinstein bill. He described his own surveillance concerns from 10 years ago, but “in the years following, the Intelligence Committee and the Congress conducted wide-ranging and intense oversight of these programs, leading to ground-breaking privacy-protective legislation, particularly the FISA Amendments Act of 2008,” said Rockefeller, chairman of the Commerce Committee (http://bit.ly/HjQHFV). He said no legislation is perfect but said the Feinstein bill would protect Americans’ privacy. “The FISA programs are structurally sound,” representing “real and important corrections to previous versions of these programs,” Rockefeller said.

Sen. Marco Rubio, R-Fla., voted yes. “The committee voted in an overwhelming bi-partisan fashion to keep the current programs intact,” Rubio’s spokesman told us. “Sen. Rubio believes these programs are legal and have saved American lives. This legislation will improve oversight by both the legislative and executive branches and provide additional safeguards to defend against any future abuse of these authorities.”

ACLU’s Richardson disputes the Feinstein proposal merits any reform label, but TechFreedom’s Szoka sees good news: As with the Stop Online Piracy Act and Cyber Intelligence Sharing and Protection Act, “we're already seeing an outpouring of support for real reform from both sides of the aisle -- something that all too rarely happens outside tech issues,” he said. “That should make it a lot easier for Congressmen to vote on their principles, not their fears.” But Richardson doesn’t expect any new laws enacted soon. She said Congress must wrestle with these warring proposals first.