Lawmakers have offered a raft of proposals in both chambers to shake up various parts of the government’s spying operation. The most prominent comes from the Senate Select Committee on Intelligence, which approved a relatively timid reform plan Thursday. On the same day, major technology firms got behind a dueling bill from Sen. Patrick J. Leahy (D-Vt.) and Rep. James F. Sensenbrenner Jr. (R-Wis.), who lead the judiciary committees in their respective chambers. Neither offers the right reform package.
The most obvious difference between the two proposals is what each would do with the NSA’s bulk collection of phone records. The Intelligence Committee’s bill would codify but tweak the practice, which the Foreign Intelligence Surveillance Court (FISC) repeatedly has deemed legal. Government officials would be allowed to review communications data collected in bulk only if it is reasonably believed to be connected to international terrorism — not for any other investigative purpose. The bill would require the FISC to limit how many officials could examine the database, restrict how far into the data they could dig and review their searches. Mr. Leahy’s and Mr. Sensenbrenner’s bill, on the other hand, would bar “dragnet” collection of communications records entirely.
The House already rejected, narrowly, a proposal to strip the FBI and the NSA of their power to obtain and analyze bulk records under court supervision, and it’s unlikely any president would accede to such a reform absent truly pernicious abuse. Public confusion about how much the NSA’s programs have helped makes it difficult to have a sensible debate on the matter.
Lawmakers now can and should demand more transparency and toughen procedures to safeguard Americans’ privacy. The Intelligence Committee’s bill does some of that, but it could be tougher. The FISC, for example, now hears only from the government, even when it must render crucial and contentious interpretations of the law. The bill would allow the court to appoint lawyers to assist the judges in considering such cases. That’s good, but it would be better if lawmakers encouraged the court to bring in adversaries of the government’s side, not just more sets of eyes.
The bill would require the government to release information about how many times the NSA searches communications information collected in bulk and how often those searches lead to FBI action. Lawmakers should require the government to release at least general estimates of the number of people whose data is scrutinized in that and other investigative processes. Congress, too, should push to for the declassification of more FISC decisions.
Lawmakers should consider Mr. Leahy’s and Mr. Sensenbrenner’s proposal to coordinate the expiration of various intelligence authorizations, which would set up regular, orderly debates on the government’s intelligence gathering. And they should look closely at the procedures the government uses to minimize Americans’ exposure to government snooping. Those procedures are a crucial part of the system, and, as The Post reported last week, they are not harmonized across the NSA’s many data collection programs — perhaps exposing Americans to more scrutiny than they realized even a couple weeks ago.
These sorts of reforms would not be enough to satisfy the NSA’s fiercest critics. But they would tighten up a system that Americans are understandably nervous about.
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