A pan-ideological group of senators this week unveiled the most high-profile bill yet for reforming the National Security Agency’s surveillance programs. The proposal does not go far enough for many civil liberties advocates. But that’s fine: The bill represents a careful, politically achievable balance, advancing several worthwhile reforms without seeking to dismantle the nation’s intelligence capabilities. Just as important, it would insist on the public release of much more information about U.S. intelligence collection, and it would provide a clear timeline for renewed debate on a range of NSA and FBI activities so the country would be able to take another crack at the issue if the bill’s balance proves unsatisfactory.
The centerpiece of the NSA debate after Edward Snowden has been the bulk collection of the call logs of U.S. citizens. The Senate bill would end the government’s practice of collecting and saving vast storehouses of U.S. calling data. In its place, the proposal would require government agents to identify a particular target — and to get a judicial order. Any information collected under this program that is superfluous to a legitimate intelligence investigation would have to be discarded, and the inspector general would do more to monitor the application of these rules.
The other major overseer would continue to be the Foreign Intelligence Surveillance Court, which would also see reform. The court would hear from independent government advocates charged with representing the interest of Americans’ civil liberties. Other reforms in the package would make it more likely that higher courts, including the Supreme Court, would review the FISC’s work. Significant FISC interpretations of law, meanwhile, would be subject to declassification review.
FISC opinions would not be the only material subject to greater transparency. The Senate bill would demand the NSA and the FBI release a large amount of new data about how many orders they issue and how many people may have been affected. This will provide new fodder for debate on various legal authorities that underpin the NSA’s work, which the bill would put on a timetable for reconsideration in 2017.
All of these changes would be worthwhile.
If you are wondering why President Barack Obama might consider signing a bill that reduces the executive branch’s flexibility to conduct foreign intelligence operations, it is at least partly because the proposal does little to the statutory core of the NSA’s work: Section 702 of the Foreign Intelligence Surveillance Act. Under so-called 702 authority, the NSA is able to collect the content of calls, emails and other communications for foreign intelligence purposes.
There is still a lot the public does not know about the 702 program and the strength of the privacy protections that it contains, though it is statutorily required to be aimed at foreigners. But ambitious reformers should be careful. Subject to reasonable checks on abuse, the government should have wide authority to seek out bona fide foreign intelligence content. At the least, the fact that the bill does not overhaul the 702 program should not nullify its many other virtues for civil liberties-minded lawmakers.