Watching House of Cards is enough to make anyone more cynical than ever about the government these days. The Capitol Hill soap opera makes Shakespeare seem light on betrayal and greed, but even as I watch I find myself thinking it may not be so far off, namely when it comes to the wheeling and dealing that happens behind closed door to push through or defeat bill in congress. It’s with that increased skepticism that I regard the NSA bill that recently passed the house. What once would have been a major win for people who care about privacy now seems to be an example of defeat snatched from the jaws of victory.
When it was first introduced last October, the USA Freedom Act was supposed to stop the NSA from spying on and harvesting information from Americans, as well as enforce new requirements regarding transparency in surveillance. The bill was backed by the Reform Government Surveillance coalition, which included companies like AOL, Apple, Dropbox, Facebook, Google, Yahoo, Microsoft, Twitter, and Linked In. Those companies have now withdrawn their support, because the proposal has been thoroughly gutted. Representative Zoe Lofgren (D-CA) co-sponsored the bill, but says it “was altered in some worrisome ways.” She also noted that “it’s ironic that a bill that was intended to increase transparency was secretly changed between the committee markup and floor consideration.” This move has the stench of Hollywood political dramas, with meetings behind closed doors with people who not only have a vested interest in continuing to gather information from the public, but who hope to pass this skeleton bill as a way to prevent real reform in the future.
Many worry that the current incarnation won’t curtail the NSA’s abhorrent behavior. The original put clear limitations on the agency’s ability to gather information, namely by restricting it to search terms that “uniquely describe a person, entity, or account,” but the amended bill includes a new definition of “specific selection term.” That new language is far broader: “a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.” This new working adds, without defining, “address” and “device,” but more worrisome than that adds “such as,” which means that they’re not limited to the terms they name.
The bill fails to address section 702 of the Foreign Intelligence Surveillance Amendments Act. This allows the NSA to collect data on foreign targets, as well as Americans in contact with those targets, even if one of those targets is merely mentioned or if those communications are “incidental.” Due to the vagaries of the law, some consider it a “back-door search loophole” that allows warrantless searches of those databases for specific communications of U.S. citizens. The new version of the bill does nothing to close that loophole.
Not passing the law would give the NSA the ongoing ability to do what it’s been doing, but passing the law isn’t likely to curtail that behavior enough. In other words, we may be damned if the bill passes, and damned if it doesn’t.