The following is a guest post by Prof. H.L. Pohlman, professor of political science at Dickinson College.
Earlier this week, Politico asked Sen. Patrick Leahy (D-VT) to contribute to a feature entitled “What Can Washington Get Done in Obama’s Last Two Years?” His answer: “Stop bulk data collection.” And to do that, he argued, Congress should pass the USA FREEDOM Act.
As lead Senate sponsor of what Politico calls one of “eleven bipartisan ideas that might actually pass,” Leahy argues that “it is not every day that a surveillance reform bill is approved by the intelligence community, privacy and civil liberties groups of all interests and viewpoints, the high tech industry and lawmakers across the political spectrum.” And it is true that a wide range of civil liberties groups have supported the bill; earlier this month a coalition of “civil liberties, civil rights, peace & justice, transparency, and community organizations” under the umbrella of the Bill of Rights Defense Committee sent an open letter to Congress urging its enactment.
The letter describes Leahy’s bill as “an important step” in curtailing the National Security Agency’s “abuses,” though it urges “more meaningful and comprehensive reform” of the NSA’s “overreaching and unconstitutional surveillance practices.” In short, Leahy’s bill will do some good, if not enough of it — and it achieves this good without doing anything bad.
But as I’ve argued before on this site, this sort of assessment mischaracterizes the tradeoffs of passing Leahy’s bill — because it completely ignores its downsides. It’s true that the bill would end the government’s bulk collection of domestic telephone metadata, but it does so only in accordance with the government’s bizarre definition of this term and at a very steep price.
Let me explain. In Presidential Policy Directive (PPD-28) issued in January 2014, the Obama administration defined “bulk collection” as the acquisition “of large quantities of signals intelligence data which . . . is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” Thus, as long as the government uses a “discriminant,” a selection term, no matter how broad that term might be, the government is not engaged in a “bulk collection” program.
Since it’s almost Halloween, think of metadata as candy. If the government goes into the candy store and picks up candy blindly and randomly, that would meet its definition of “bulk collection.” But if the government goes into that store and knowingly selects huge amounts of specified types of candy (“give me all the caramels and chocolates you have”), then that would not constitute “bulk collection,” even if the amount of candy removed from the store is larger than in the first case.
The USA FREEDOM Act does not guarantee, then, that the government’s database of telephone metadata will be smaller than it is now. It all depends on the generality of the selection terms that the government will use to obtain metadata from the telephone companies. And we don’t know what those terms will be.
At the same time, while right now the government is (arguably) collecting all the domestic telephone metadata that it can get its hands on, there is a judicially-imposed limit on its use. The Foreign Intelligence Surveillance Court only allows the government to “query” the database if law enforcement has a “reasonable articulable suspicion” that a phone number is linked to a terrorist group. But Leahy’s bill changes things by setting up two ways for the government to request metadata from the phone companies. See here for details — but the short version is that the current draft creates a loophole that allows much wider use of the data obtained by a selection term if it is designed “to obtain foreign intelligence information not concerning a United States person,” since foreign intelligence purposes could range from improving the US’s position in trade negotiations to negotiating treaties.
In his piece, Leahy says his bill will “end bulk collection of Americans’ records once and for all.” It might – by defining it away. What it will not do is rein in NSA surveillance.