The annual appropriations bill to authorize funding for the intelligence community is set for a battle in the Senate, as critics charge that it enables a surveillance regime Congress had just been poised to scale back.
“This bill takes a hatchet to important protections for Americans’ liberty,” Sen. Ron Wyden said in a statement late last month, following its passage out of the Senate Intelligence Committee he sits on. The Oregon Democrat added the legislation would “mean more government surveillance of Americans, less due process and less independent oversight of U.S. intelligence agencies.”
At issue is a classified section of the bill that authorizes surveillance programs. That section, Wyden said, would allow the FBI to obtain electronic records using “national security letters” without a court order, expanding the agency’s power at a time that many in Congress were trying to rein it in. To date, the documents have allowed the FBI to obtain customer records from entities like telephone companies without judicial authorization, but never from Internet providers.
“Expanding the NSL powers to this new category of records only raises the possibility of abuse and underscores the need for court involvement,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. “It would potentially expand the FBI’s use of NSLs to revealing electronic communications records such as URLs and email header information. Even before this, NSLs had a long history of abuse.”
Just weeks ago, the legislation had been poised for passage without any wrinkles. The bill passed the House on a May 24 voice vote, 371-35. The provision to expand surveillance authority was inserted in the Senate version before its passage out of that committee, according to a congressional aide, which means that some serious reconciliation could need to take place in the event the Senate passes its own version.
That’s especially true after the House in April passed the Email Privacy Act unanimously in April. The overwhelmingly popular proposal would require law enforcement officials to seek a warrant before accessing old emails or text messages. Though it hasn’t moved since its subsequent arrival in the Senate Judiciary Committee, it will be difficult for opponents of the legislation to defeat it once it reached the Senate floor.
That has civil liberty advocates viewing the effort to use the Intelligence Authorization Act to make surveillance policy largely as an attempt to head off the prospect of reform.
“It’s astounding that the committee would try and slip such a massive expansion of government surveillance power into a ‘must-pass’ bill that’s crafted and debated in secret,” said Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security and technology project.
“Your emails and web browsing history reveals the most sensitive details of your life,” Rottman said. “Where you worship, who you associate with, what you believe politically, romantic attachments, your health and this legislation would give the government vast new authority to collect that information without a warrant.”
Whether the legislation will make it through the Senate, and serve as a vehicle adequate for gliding it through a reconciliation process with the House, remains to be seen.
Its most prominent advocates, Sens. Richard Burr, R-N.C., and Dianne Feinstein, D-Calif., who serve respectively as the chairman and ranking member of the Senate Intelligence Committee, issued a joint statement of support for the bill, but notably omitted any reference to surveillance or the NSL program. That means rhetoric in the debate is sure to escalate in the days ahead.
