The reforms, however, do not substantively address issues raised by a Justice Department inspector general report in December that found significant procedural and substantive errors in an application to wiretap Carter Page, a former campaign aide for Donald Trump that the department suspected of being a Russian agent, according to privacy advocates.
The surveillance of Page and the NSA call records program are both governed by the Foreign Intelligence Surveillance Act, which sets parameters for intelligence and terrorism investigations.
“You’re fresh off an IG report that found some pretty large deficiencies in the FISA process and which we would have liked to see fully addressed in the Judiciary bill,” said Neema Singh Guliani, senior legislative counsel with the American Civil Liberties Union. “The proposal does not go far enough.”
The bill, which was drafted in consultation with the House Intelligence Committee, would outlaw a “call detail record” program whose roots lie in the chaotic days after the Sept. 11, 2001, terrorist attacks. That collection was secret for years until a leak by former NSA contractor Edward Snowden in 2013 revealed its massive scope.
After two years of heated debate, Congress passed USA Freedom, imposing restraints on the collection while allowing it to continue.
But the program, through which the NSA gathered records of targets’ phone calls — their dates, duration and who called whom — proved to be of limited value. That’s despite the fact that in 2018, the NSA collected more than 400 million such records for only 11 targets.
That year, the agency began scaling back the collection and suspended it in 2019. The Trump administration has pressed to retain the power to restart the program if it chooses. The proposed bill would prevent that.
“I can’t recall any occasion in recent history when Congress has outlawed a statutorially authorized surveillance program,” said Greg Nojeim, senior counsel at the Center for Democracy and Technology. “That’s a big deal.”
The authority under which the NSA has collected the phone records is sometimes called “Section 215,” after a key Patriot Act provision passed in 2001. The Judiciary bill also would bar officials in national security cases from using the Section 215 authority to obtain information that would require a warrant in criminal probes.
That is understood to include geolocation information, which tells investigators where a suspect has been based on cell tower and GPS data. But one problem with the bill is that it does not explicitly say so, Guliani said. “They need to be clear about what you can’t get,” she said.