The 19^th Century American essayist Charles Dudley Warner is responsible for the saying, “Politics makes strange bedfellows.” Given the political discord that has been roiling Washington, D.C. for several years that has brought the legislative process to something slower than a crawl, Warner would be pleased to point out, “I told you so!”  

The reference would be to the bi-partisan effort to pass legislation that would reign in the ability of the National Security Agency (NSA) to collect bulk phone metadata. For those with a short memory, the disclosure of this collection program was Edward Snowden’s first leak to the Guardian newspaper. It involved publication of a classified court opinion (confirmed as authenticate by the government) requiring Verizon to provide the NSA the phone numbers of both parties involved in all calls, the international mobile subscriber identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls. It was also noted at the time that the program had been going on for a while and Verizon was just one of several carriers participating. 

Subsequent revelations, including the latest about NSA secretly listening in on calls made by the political leaders of U.S. allies have caused a bigger ruckus at this point, but legislators have not forgotten what got the ball rolling. In fact, despite subsequent findings that NSA really only was collecting phone records and supposedly was not listening, has done little to assuage concerned lawmakers. 

Hot off the presses is what is known as the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act” or the “USA FREEDOM ACT” for short. The reason it serves as validation of the Warner quote is that it currently has 16 Democratic co-sponsors in the Senate and 70 bipartisan co-sponsors in the House. It also is being supported by groups as diverse as the American Civil Liberties Union (ACLU) on the left and the National Rifle Association (NRA) on right. 

“It is time for serious and meaningful reforms so we can restore confidence in our intelligence community,” said Sen. Patrick Leahy, a Democrat from Vermont and one of the bill’s chief sponsors.

Rep. Jim Sensenbrenner (R-Wisconsin), the main sponsor of the Patriot Act, has said for some time that the original intent of the Patriot Act has unwisely been expanded and that it is time for a reform. The initial law, passed in the immediate aftermath of the 9/11/2001 attacks was amended in 2006 to allow the bulk collection program under an interesting interpretation of Section 215 of the Patriot Act. That section allows the secret Foreign Intelligence Surveillance Court to authorize broad warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies. As Sensenbrenner stated, “Somewhere along the way, the balance between security and privacy was lost.”

A major revamping of the law

What is being proposed is not change at the margins. It is a major revamping. The preamble sets it up nicely:

Public revelations about classified government surveillance programs have brought renewed attention to the powerful authorities contained in the Foreign Intelligence Surveillance Act (FISA), and in particular the implications for the privacy rights of law-abiding Americans.

The bipartisan, bicameral USA FREEDOM Act will rein in the dragnet collection of data by the National Security Agency (NSA), increase the transparency of Foreign Intelligence Surveillance Court (FISA Court) decision-making, provide businesses the ability to release information regarding FISA requests, create an independent advocate to argue cases before the FISA Court, and impose new and shorter sunsets on controversial surveillance authorities. 

The headings of the recommendations section illustrate the intent at major policy alteration:

• End Bulk Collection of Americans’ Communications Records
• Protect Americans’ Communications Collected Under the Fisa Amendments Act
• Create New and Shorter Sunset Provisions to Ensure Proper Oversight
• Reform the Foreign Intelligence Surveillance Court
• Increase Transparency and Oversight
• Impose Safeguards on National Security Letters

Suffice it to say that none of this is sitting well with the intelligence community or, for that matter, the Obama Administration. As seen during Congressional testimony this week regarding snooping on the heads of state of our allies, the intelligence community believes that everybody (countries and us average citizens) does it, and for investigative purposes to prevent acts of terror or crimes, or produce a factual record after the fact, collection of such information is vital to national, state and federal public safety officials. 

The White House for its part has consistently expressed the view, supported by many in Congress (which is why the prospects of reform legislation passing remains a challenge) that the intelligence community’s job is to keep the country safe and that such collection programs have helped solved several terrorist plots both in the U.S. and overseas.  

It should be noted that legislation that was very similar to this was introduced in the U.S. House in July of this year and went down to a narrow defeat by a vote of 217 -205. Supporters believe in the old saying, “That was then and this is now.” The point being that the rolling thunder of Snowden revelations has made the case for reform stronger. Indeed, the bill’s sponsors believe that the reform package does nothing to impede the intelligence community from pursuing gathering information on subjects of interest. What they are seeking is a more intelligent and practical regime that does not presume we are all guilty until proven innocent, and where there is some accountability introduced into the process so things to not get wildly out of hand. 

There are very few days left on this year’s legislative calendar, which means this is likely to slip into next year. However, what is very clear— given who is behind this and the growing general unease that we have entered an era where there is no such thing as privacy or Fourth Amendment rights to be protected from unlawful search and seizure—is the issue is not going away. In fact, the old lobbyist in me senses that the atmospherics may be right for legislation to pass both houses of Congress, which would certainly put the president in an interesting situation.