A large bipartisan majority of the House of Representatives last week passed a bill, the USA Freedom Act, to end the bulk collection of American telephone records by the National Security Agency. The bill also would throw a modest amount of light on the decisions of a secret federal court that oversees intelligence collection by the executive branch.
While a welcome first step toward reining in a government with "Big Brother" powers, the House bill falls short of the objective of its original sponsors. Transparency measures intended to guard against secret intrusions on personal privacy were weakened. And there are concerns about an undefined "specific selection term" to theoretically limit the reach of government intrusion into personal records and personal communications.
Rep. James Sensenbrenner, R-Wis., co-sponsor of the original bill with Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said the bill will require the Foreign Intelligence Surveillance Court to make a public report of any decisions that define the "specific selection term" authority.
"This is the end of secret laws," he declared. "If the administration abuses the intent of the bill, everyone will know."
In 2006 the FISA court, in a secret order, overwrote limits in the Patriot Act to allow the bulk collection of all American telephone records despite the legal requirement that there be "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation."
As Rep. Sensenbrenner noted, the House bill restores some limits on government searches.
But Mr. Sensenbrenner added, "In order to preserve core operations of the intelligence and law enforcement agencies, the administration insisted on broadening certain authorities and lessening certain restrictions. Some of the changes raise justifiable concerns, and I don't blame people for losing trust in their government, because the government has violated their trust."
Rep. Zoe Lofgren, D-Cal., a member of the House Judiciary Committee, complained that the bill had been weakened after it was reported out by her committee - "without the knowledge of committee members" - to reduce its transparency measures and increase ambiguity that can be exploited by the intelligence community. She said that was why "all the civil liberties groups have withdrawn their support from this bill." Facebook and Google also have pulled their support, she said.
The Obama administration lobbied intensively to weaken the original Sensensbrenner-Leahy bill. And James Comey, the new Director of the Federal Bureau of Investigation, gave a recent interview to The New York Times in which he said that the terror threat was far more intense and dangerous than he had realized before he assumed his new post.
The recently retired head of the National Security Agency General Keith Alexander gave an interview to The New Yorker in which he stressed the continuing danger of a terrorist strike on the United States and endorsed the modest changes incorporated in the new USA Freedom Act.
Interestingly and disturbingly, these messages of a rising threat contrast markedly with the view expressed by President Obama in an interview with The New Yorker earlier this year that today's jihadist groups in places like Yemen, Syria, Iraq, Afghanistan and elsewhere are no big threat. "The analogy we use around here sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms that doesn't make them Kobe Bryant," he said.
The House bill is better than the status quo, but it needs to be strengthened in the Senate.
Still, there is a larger issue that Congress has failed to take on. As long as business records - your phone bill, your bank statement, etc. - are not considered personal property protected by the Fourth Amendment, the government will be tempted to use bulk collection techniques to pry into personal affairs without having to present a specific reason to a federal court.
The non-protected status of business records was established by the Supreme Court in a 1979 case, Smith v. Maryland. That was long before computers made it possible for the government to conduct massive data sweeps of public records and match them up to get personal profiles of anyone it chooses.
The advent of this technology urgently requires a new definition of personal property that restores the balance between government and the individual that the Fourth Amendment established.