NSA surveillance reform

Republican Representative Jim Sensenbrenner has introduced the USA Freedom Act, which would tighten restrictions on NSA metadata collection. The bill represents a major political reversal for the Wisconsin conservative. After the 9/11 attacks, Sensenbrenner played a key role in the passage of the PATRIOT Act, the law that served as the genesis of expanded counterterrorism powers for law enforcement and intelligence agencies.

"...Somewhere along the way, the balance between security and privacy was lost," Sensenbrenner said in a recent press release. "It's now time for the judiciary committees to again come together in a bipartisan fashion to ensure the law is properly interpreted, past abuses are not repeated and American liberties are protected."

Meanwhile, the FISA Improvements Act has cleared the Senate Intelligence Committee in a 11-4 vote. According to one of the bill's main sponsors, Senator Dianne Feinstein, the legislation would increase transparency and accountability but keep bulk metadata collection largely in place.

FISA Improvements Act of 2013

The FISA Improvements Act of 2013 does not impose significant new limitations on the NSA's current bulk collection of metadata. Instead, the legislation would entrench those controversial surveillance programs, according to the Electronic Frontier Foundation (EFF), a civil liberties advocacy group based in San Francisco.

"It will essentially codify the current practices by the NSA, while potentially allowing for other programs," Mark Jaycox, a legislative analyst with EFF, told DW via email.

In some instances, the FISA improvements Act even expands the NSA's surveillance powers. Currently, if a NSA target enters the United States, the agency has to halt its surveillance operation pending an additional court order. But the Feinstein bill does away with that requirement. Instead, the NSA would be empowered to continue surveillance against its target for up to 72 hours on US soil without any additional court approval.

The FISA Improvements Act also would stiffen criminal penalties for anyone who accesses without authorization metadata stored on government computers, imposing a maximum 10-year prison sentence. The threat of such a sentence could prevent a repeat of the so-called LOVEINT scandal, in which NSA employees were digitally stalking their romantic interests. But it could also potentially be used against whistle-blowers such as Edward Snowden.

Strengthened transparency

The NSA's expansive surveillance programs are based in part on rulings made in secret by the Foreign Intelligence Surveillance Court (FISC). Under the FISA Improvements Act, the US Attorney General would have to submit copies of these rulings to the House and Senate intelligence and judiciary committees. A summary of these rulings would then be made available to all members of Congress.

"The bill's (transparency) provisions are actually stronger than current practice, but current practice is far from ideal," Jaycox wrote. "The American public needs to be told about any secret law or judgements impacting innocent users' privacy rights."

But according to national security law expert Stephen Vladeck, the real question is not whether members of Congress will have greater access to the court's documents, but rather, what lawmakers will be able to do with them.

"It's one thing to say this information will be available in a secure facility that you and only you can go to," Vladeck, a law professor at American University in Washington D.C., told DW.

"And it is something else entirely to say we're going to allow your staff to be briefed on this; we're going to allow you to sort of talk about these issues with outside experts," he continued. "Not every member of Congress is a lawyer."

The bill also requires the FISC to appoint outside experts to help review government surveillance applications. Currently, the government faces no opponent when arguing its cases before the court. But according to Vladeck, the provision on outside experts would do little to make the FISC proceedings more adversarial.

"The FISA court already has the authority today to request the participation of outside experts, so codifying an authority that it already possesses is, to me, sort of an empty measure," Vladeck said.

USA Freedom Act of 2013

The USA Freedom Act, on the other hand, would strengthen the targeting restrictions for the NSA's bulk collection of telephone metadata. That's the program established under Section 215 of the PATRIOT Act, which collects the call records of people in the US.

The bill would also impose tighter restrictions on Section 702 of the FISA Amendments Act - the statutory basis for programs like PRISM - in order to better prevent the collection of US citizens' Internet metadata. According to the NSA, the collection of US metadata occurs "incidentally" when conducting operations against foreign targets.

"The real key in the approach taken in the USA Freedom Act is not to deny outright to the government the power to collect this kind of information, but is rather to try to ensure that the government is not using these authorities as pretext," Vladeck said.

The USA Freedom Act also attaches a permanent special advocate to FISC, who would be tasked specifically with representing civil liberties and privacy concerns. In contrast to the outside experts in Feinstein's bill, the special advocate must have a proven track record of being a "zealous and effective advocate in defense of civil liberties."

The chief justice of the Supreme Court would appoint the special advocate from a pool of five candidates selected by the president's Privacy and Civil Liberties Oversight Board. The advocate would have access to both the government's surveillance applications and the secret court's decisions and can move to challenge them.

But the USA Freedom Act would do very little to restrict NSA surveillance against foreign nationals living abroad, according to Vladeck.

"Neither the FISA Improvements Act nor the USA Freedom Act really have non-citizens in mind," he said. "Both are really responses to concerns that have arisen on the home front and actually do very little to assuage the concerns that have arisen with regard to our surveillance of foreigners."