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Might Get Fooled Again? — The Senate and Surveillance

The following is a guest post by H.L. Pohlman, Professor of Political Science at Dickinson College.

Sen. Patrick Leahy (D-VT) Tuesday introduced his version of the USA Freedom Act (text here) aimed at reining in the National Security Agency’s bulk collection of domestic telephone metadata. The House passed its version of the bill back in May.

By and large, civil liberties groups, such as the American Civil Liberties Union and the Center for Democracy and Technology, support Leahy’s bill, seeing it as a a definite improvement over the House version (albeit with the worst acronymic title since the PATRIOT Act: to get to “USA Freedom” legislative staff had to stay up late coming up with “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Oversight Over Monitoring.”)

Leahy’s bill, drafted via negotiations with the White House, aims to end the government’s bulk collection of data: instead, telephone companies will store it, with the government able to request the production of detailed phone records only if (1) they are “relevant” to an investigation of international terrorism; (2) a “specific selection term” is used to request the records; and (3) there is a “reasonable articulable suspicion” that the “selection term” is “associated with a foreign power or an agent of a foreign power. ”  In addition, the bill establishes a six month time limit for a production order, permits the government to collect phone records only two “hops” from the “selection term,” and requires the prompt destruction of phone records that the government determines are not “foreign intelligence information.”

But there is one crucial provision that the civil libertarians that support Leahy’s bill have overlooked. Namely, that the bill includes the same language contained in the House bill that created a “backdoor” authority to collect phone records that evade all the limitations just listed. I noted this provision in a post on this site last May, and called it my “most serious concern” with the House version. Since then the Congressional Research Service (CRS) has made its analysis available: it comes to the same conclusion.  To wit: the text “carves out” the government’s authority to obtain telephone metadata from its more general authority to obtain “tangible things” under the PATRIOT Act’s so-called business records provision. This matters because only phone records that fit within the specific language of the “carve out” are subject to the above restrictions on the government’s collection authority.  Those restrictions apply only “in the case of an application for the production on a daily basis of call detail records created before, on, or after the date of the application relating to an authorized investigation . . . to protect against international terrorism.”

This means that if the government applies for a production order of phone records on a weekly basis, rather than on a “daily basis,” then it is falls outside the restrictions. If the application is for phone records created “before, on, [and] after” (instead of “or after”) the date of the application, ditto. If the investigation is not one of international terrorism, ditto.

The Senate bill therefore has the House bill’s problem: both create two separate frameworks for the production of phone call detail records. Those that fit the “carve out” are subject to the restrictions on government’s collection authority mentioned above. Those that do not need only satisfy the more general requirements of the “business records” provision: the phone records would merely need to be “relevant” to “an authorized investigation,” with a “specific selection term” (however broad) used in the application.

The bottom line is that Leahy’s bill is a continuation of the intelligence community’s efforts to at best confuse – and at worst, mislead –the American people (and perhaps their legislative representatives) through the clever use of legalese. This is not to doubt their good intentions in so doing. But with luck the full Senate will keep in mind the words of their immortal colleague Daniel Webster. “Good intentions will always be pleaded for every assumption of authority…” Webster said in 1837.  “It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions…. There are men, in all ages, who mean… to govern well; but they mean to govern. They promise to be good masters; but they mean to be masters….”