The NSA: domestic surveillance too? (Photo: Patrick Semansk/AP) The NSA: Domestic surveillance too? (Patrick Semansk/AP)

The following is a guest post by H.L. Pohlman, professor of political science at Dickinson College.

Yesterday on this site, journalist Marcy Wheeler weighed in on a debate between myself and Gabe Rottman of the American Civil Liberties Union, regarding the robustness of the civil liberties protections in Sen. Patrick Leahy’s recent redraft of the USA Freedom Act, aimed at reining in the boundaries of NSA surveillance. The text of Leahy’s version of the bill is here.

In a nutshell, I argued that the bill contained some problematic language that could actually allow more access to data by NSA; Rottman agreed that scrutiny was warranted but suggested the situation was not so bad — and certainly better than the status quo; Wheeler suggested the ACLU was too optimistic and pointed to other parts of the bill as potentially open to abuse.

In two brief posts — it seems less confusing to separate out the debates — I want to amplify some of those concerns and add others gleaned from a close reading of the draft. In this post I want to respond to the ACLU argument; in Part II I will look at the issue of “minimization” Wheeler raised.

First, my worry is not just about “prospective collection” of telephone metadata, as Rottman suggests. The bill allows the government to collect all forms of metadata – past, current, and prospective – on a “daily” basis. And it also allows the collection of records created “before, on, or after” (my emphasis) the date of the application on a non-daily basis if they are “relevant” to an investigation “to obtain foreign intelligence information not concerning a United States person.”

The legal definition of  “foreign intelligence information,” in turn, includes “information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to … the conduct of the foreign affairs of the United States ”

Accordingly, if the government believes that to “conduct the foreign affairs of the United States” it is necessary to analyze the communication links between relatively large groups of U.S. persons inside the United States and, let’s say, the rebels in the Ukraine or the jihadists in Syria, the bill in its current form gives the government the right to seek a production order from a FISA judge to collect the relevant telephone metadata. (And, in doing so, despite Rottman’s claim, to go beyond the “two-hop” limit of numbers from the original number if the government thinks it is necessary.)  Such an order would not be issued under existing law because FISA judges only allow the government to “query” its comprehensive database of telephone metadata if there is a “reasonable articulable suspicion” that the so-called “seed” number is associated with specific foreign terrorist organizations. In 2012 this burden meant the government ran only 300 “queries” of this sort, according to the Obama Administration’s White Paper on the Section 215 Program.

Rottman believes that such a “bulky collection” order would still be impermissible under the Leahy bill because the government must use a “specific selection term,” such as a specific phone number, as the basis for the collection of any telephone metadata.

But the bill contains two definitions of “specific selection term.”  One definition requires a term that “specifically identifies an individual, account, or personal device” (see p. 17 of the draft bill), but the other does not.

If the production of metadata is on a non-daily basis or if it consists of records created “before, on, and after” the date of the application, then the government can use a “specific selection term” that is based on a “broad geographic region, including a city, State, Zip code, or area code” — so long as that is, in the bill’s convoluted language, part of a “specific identifier” that narrowly limits “the scope of the tangible things sought to the greatest extent reasonably practicable, consistent with the [government’s] purpose for seeking the tangible things” (p. 17).

Accordingly, if the government’s purpose is to analyze the communications links between foreign populations and large groups of U.S. residents (let’s say those living in Dearborn, Mich., or South Paterson, N.J.), this bill would allow it, assuming that the government can convince a FISA judge that the collection is “necessary” to “conduct the foreign affairs of the United States.”

Rottman is confident that no FISA judge would allow such “bulky collection” because “courts are under an obligation to read statutes “to avoid absurd results” and “it would be deeply absurd to create a stricter new regime for prospective daily collection, but to maintain a lenient standard” for other types of collection.

I am not so optimistic.  By providing a statutory basis for two independent frameworks for the collection of telephone metadata, the Leahy bill arguably permits the government to obtain and analyze telephone metadata from the telephone companies by the dipperful, if not the bucketful, rather than by the spoonful.

A quick addendum: I fear Wheeler, too, is overly optimistic on the “selection term” issue. She correctly notes that Leahy’s bill prohibits the use of an electronic communication service provider (unless that provider is a target of an investigation) as a “specific selection term.”  However, there is an important exception to this rule.  If the “selection term” is “used as part of a specific identifier” that the Government uses “to narrowly limit the scope of tangible things sought to the greatest extent reasonably practicable, consistent with the purpose for seeking the tangible things,” then the government can use the name of an electronic communications service provider (see p. 26 of the bill).

In short, it all depends on why the government wants to collect the data.  If using the name of such a provider is the only “reasonably practicable” way to collect the relevant data in a timely fashion, Leahy’s bill seems to permit its use.