After NSA Leaks, Senators Re-Introduce Bill To Reduce Patriot Act Secrecy

Senator Ron Wyden questioning Director of National Intelligence James Clapper in March.

While many in the U.S. government and the media are busy calling for the extradition and prosecution of NSA leaker Edward Snowden, one group of senators is working to change the laws that allowed the secret surveillance his leaks exposed.
Senators Jeff Merkley and Mike Lee, along with six other legislators, on Tuesday introduced a new bill that would require the Attorney General to declassify “significant” opinions of the Foreign Intelligence Surveillance Court, which is meant to oversee the scope and targets of surveillance by agencies like the NSA under the Patriot Act.

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The broad, secret powers of that judicial body were put in the spotlight last week when the Guardian newspaper published a top secret order from the court leaked by 29-year-old Booz Allen Hamilton staffer Edward Snowden, demanding that Verizon Business Network Services hand over the call records of every one of its American customers for a three month period ending in July. Senators Diane Feinstein and Saxby Chambliss responded to the outcry surrounding that leak by commenting that this sort of Patriot Act-enabled surveillance has in fact been going on for seven years. And within 24 hours, the revelation of that surveillance had widened to also include AT&T and Sprint.
“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” Senator Merkley is quoted as saying in a press release. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies.  We can’t have a serious debate about how much surveillance of Americans’ communications should be permitted without ending secret law.”
The Senators’ measure to shed more light on the FISC was first introduced late last year, but was rejected in a vote of 38 in favor and 52 against. In the wake of Snowden’s leaks, the bill may now have more popular support.
Though the FISC was designed to provide a check on the power of the FBI’s and the NSA’s surveillance, its critics argue that it’s become little more than a rubber stamp process. In its annual report to Congress, the FISC stated in April that it had received 1,789 applications for electronic surveillance. One was withdrawn by the petitioners. Forty were approved with some changes. All 1,748 others were approved just as they’d been submitted.
“This is a secret court that makes secret law and is entirely one-sided,” says Electronic Frontier Foundation (EFF) policy analyst Mark Jaycox. When a government agency petitions for permission to surveil a target, only the government agency’s views are represented in the court, not the subject of that spying, he says. “There are no adversarial arguments, no vetting.”
The EFF, in fact, doesn’t believe that the Senators’ amendment goes far enough to address the privacy violations exposed by Snowden’s disclosures, and wants an active investigation into NSA’s cell phone record collection and its PRISM program, revealed in another leaked document to be a method of collecting data from Internet firms including Google, Microsoft, Apple and Facebook.
“We hope this bill will catalyze a larger public debate around these revelations,” says Jaycox. “[But] we want an investigative committee, a special committee to investigate these ongoing surveillance programs, to determine the full depths of and breadth of PRISM and these other surveillance programs.”
Update: The eight senators aren’t the only ones pushing for more transparency around Foreign Intelligence Surveillance Act requests. Google’s chief counsel David Drummond has also sent a public letter to Attorney General Eric Holder and FBI Director Robert Mueller asking permission to reveal the number of FISA requests the company receives for its users’ data.
One Senator who has already attempted to shed more light on those surveillance projects is Ron Wyden of Oregon, who has added his name to the new bill. In a congressional hearing last March, Wyden asked Director of National Intelligence James Clapper whether ”the NSA collect[s] any type of data at all on millions or hundreds of millions of Americans,” to which Clapper responded “No sir.”
In an interview on NBC’s Today Show Sunday, Clapper said that the logic behind his response involved the ambiguous definition of the word “collect,” which he admitted was “too cute by half.”
With this latest bill, Wyden may elicit more straightforward answers from those that oversee the NSA. “It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy,” Wyden wrote in Tuesday’s press release. ”When talking about the laws governing intelligence operations, the process has little to no transparency. Declassifying FISA Court opinions in a form that does not put sources and methods at risk will give the American people insight into what government officials believe the law allows them to do.”