Dueling Privacy Bills

The definition of a Beltway Conventional Wisdom summary.

NSA chief denies collecting millions of phone records on European citizens

By Ellen Nakashima and William Branigin, Washington Post

Updated: Tuesday, October 29, 3:30 PM

On one hand, there is the approach taken by Sen. Patrick J. Leahy (D-Vt.), the Senate Judiciary Committee chairman; Rep. F. James Sensenbrenner Jr. (R-Wis.), a former House Judiciary Committee chairman; and Sen. Ron Wyden (D-Ore.), a senior member of the Senate Intelligence Committee. They would end the mass collection of phone data by requiring the government to prove to a court that it is seeking call records relevant to either an agent of a foreign power who is the subject of a terrorism investigation or someone with a link to that agent. Such a requirement would make bulk collection impossible, the proponents say.

The legislation also would require a warrant to deliberately search for the e-mail and phone call content of Americans that is collected as part of a surveillance program targeting foreigners located overseas.

“The government has not made its case that bulk collection of domestic phone records is an effective counterterrorism tool, especially in light of the intrusion on American privacy,” Leahy said at a hearing this month.

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On the other hand, the approach taken by Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, and Rogers, chairman of the House Intelligence Committee, focuses on increasing transparency and privacy protections.

The intelligence committee leaders have not introduced their respective bills, but Feinstein has outlined the changes under consideration. They include limiting access to the call database; codifying the requirement that analysts have a “reasonable articulable suspicion” that a phone number is associated with terrorism to query the database; requiring that the FISA court promptly review each such determination; and limiting the retention period for phone records, now five years.

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The Intelligence Committee’s bill, she said, would also expand the NSA’s authority to allow it to continue intercepting for three days the phone calls and e-mails of an overseas foreign target who had entered the United States. That would give the government a chance to go to the FISA court to seek a traditional individual warrant to continue the collection. If the warrant was denied, the intercepts would have to be deleted.

The bill would also require Senate confirmation of the NSA director and inspector general.

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The proposal to end bulk collection, if it is allowed to reach the floor, could succeed in the House, where a similar effort failed by only 12 votes in July. At least eight lawmakers who voted against the July measure and two who did not vote on it are now in favor of Leahy and Sensenbrenner’s approach, congressional aides said.

“The public is justifiably concerned about the fact that everybody’s phone calls apparently have been snared in this – even people who have no relationship to terrorism,” Sensenbrenner said in an interview. “But what has come out since the end of July, I think, is going to tip the scales in favor of a significant NSA reform.”