BY CHRIS PAWLIK – The Senate Intelligence Committee recently approved a new bill that aims to address concerns regarding the National Security Agency’s (N.S.A.) bulk data gathering practices. [1] The bill, titled the FISA Improvements Act, was introduced by Senator Diane Feinstein (D-California) and passed by a vote of 11-4. [2] The bill heavily favors current intelligence gathering practices and would expand the ability of other federal and state law enforcement agencies to access the NSA’s trove of gathered information. [3] However, the digital privacy group the Electronic Frontier Foundation (E.F.F.) is already calling Senator Feinstein’s bill a fake fix. [4] Chief among their arguments against the FISA Improvements Act is that Senator Feinstein’s bill does nothing to address the underlying civil rights concerns regarding intelligence data gathering and sharing practices.
The FISA Improvements Act would codify the NSA’s ability to gather bulk data, something that is already routinely done with the approval of the Foreign Intelligence Surveillance Court (F.I.S.C.). [5] The bill seeks to prohibit the collection of bulk communications, except under certain procedures and restrictions that would be subject to oversight. [6] Some of the new oversights that the bill aims to provide include a requirement that any review of records collected under Section 215 of the PATRIOT Act be supported by reasonable articulable suspicion in connection with international terrorism as well as requiring that the determination of reasonable articulable suspicion be made by the F.I.S.C. [7] The FISA Improvements Act would also mandate that the F.I.S.C. put in place a limit on the number of particular contacts that any individual analyst is able to receive when making a query into any of the N.S.A.’s gathered bulk communications. [8] Further, if an intelligence agency violates American law or an executive order, the violating agency must report it to Congress. [9]
After a New York Times publication concerning an internal five-page N.S.A report, which comes hot on the heels of the FISA Improvements Act passing the Senate Intelligence Committee, it certainly cannot be argued that the N.S.A. has not actively sought to expand its capabilities to gather and collect information. [10] The report makes clear that the N.S.A. does not find existing American laws adequate to its surveillance needs. [11] Hence, the N.S.A. has a strong interest in ensuring their continued ability to operate in light of leaks made public by Edward Snowden. The question though remains open as to what the N.S.A might be able to achieve operationally with expanded statutory support should the FISA Improvements Act make it through Congress unscathed and whether the safeguards called for will be sufficiently adequate. The FISA Improvements Act is not without its own critics from within the Senate Intelligence Committee such as Senator Ron Wyden (D-Oregon) who tweeted, “The bill reported today [October 31st, 2013] from Intelligence Cmte [sic] remains far from anything that could be considered reform.” [12] Further, it will be difficult to assess the strength and weight of Senator Feinstein’s bill until the House and Senate Judiciary Committees, which also share jurisdiction over the Foreign Intelligence Surveillance Act, considers legislation this year that is likely to run counter to the goals of the FISA Improvements Act. [13]
The FISA Improvements Act in addition to any other legislation that will arise from Congress will continue to be a serious focal point for the intelligence community, rights groups, and individuals around the world to rally around. In the end, if the FISA Improvements Act or something substantially similar to it successfully works its way through Congress, the N.S.A. just might reach their optimal operational capacity during the golden age of signals intelligence. [14]
[2] Id.
[3] http://www.theguardian.com/world/2013/nov/15/feinstein-bill-nsa-warrantless-searches-surveillance
[4] https://action.eff.org/o/9042/p/dia/action3/common/public/?action_KEY=9437
[5] http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html
[7] Id.
[8] Id.
[10] http://www.nytimes.com/2013/11/23/us/politics/nsa-report-outlined-goals-for-more-power.html?_r=0
[11] Id.
[13] http://rt.com/usa/feinstein-bulk-collection-patriot-act-054/
[14] http://www.nytimes.com/2013/11/23/us/politics/nsa-report-outlined-goals-for-more-power.html?_r=0
