Disclosure that the U.S. National Security Agency broke privacy rules thousands of times in a year is adding momentum to efforts in Congress to curb the top-secret surveillance programs made public by Edward Snowden.
“People are feeling the heat, and I think there will be meaningful change,” Bruce Schneier, a fellow at the Berkman Center for Internet & Society at Harvard University, said in an interview after the latest disclosure. Schneier, a critic of the NSA, said it’s become a “rogue agency” that’s ripe for legislative restrictions.
An internal audit by the NSA found 2,776 cases of violations in the preceding year in collecting voice and data communications of both Americans and foreigners. The violations were reported last week by the Washington Post, which cited the May 2012 audit and other documents provided to it earlier this year by Snowden, the former NSA contractor who faces U.S. espionage charges and was granted temporary asylum in Russia.
Even before the latest leak, Congress was preparing for its most extensive review of surveillance programs since the aftermath of the Sept. 11, 2001, terrorist attacks. Lawmakers have filed at least 10 bills on the issue, including measures to increase the openness of the NSA’s data-collection programs, change the makeup of the Foreign Intelligence Surveillance Court that oversees them and expand congressional oversight of the intelligence operations.
Last month, the Republican-controlled House rejected by seven votes a measure by Republican Representative Justin Amash of Michigan that would have denied the NSA funding to collect telephone records on millions of Americans.
“This is not falling on normal party lines,” Schneier said.
Responding to last week’s disclosure, Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said in a statement that the panel will hold a hearing “to demand honest and forthright answers from the intelligence community” that he said it has failed to provide.
“I’m all for surveillance of spies,” Senator Rand Paul of Kentucky, a potential 2016 Republican presidential contender, said yesterday on the “Fox News Sunday” program. “I’m just not for this gross bulk gathering of data on all Americans.”
John DeLong, a spokesman for the NSA, told reporters on Aug. 16 that the agency’s rule violations were unintentional and amounted to “parts per million” in light of all the data collected. “We have a zero-tolerance policy for intentional mistakes,” he said.
The need for closer oversight already had been acknowledged by the NSA’s strongest defenders in Congress, such as Senator Dianne Feinstein, who say the surveillance programs are needed to combat terrorism.
Feinstein, a California Democrat who heads the Senate intelligence committee, said in a statement on Aug. 16 that “the committee can and should do more to independently verify that the NSA’s operations are appropriate,” including more hearings and more “routine trips” to the agency by the committee and its staff.
President Barack Obama urged lawmakers on Aug. 9 to make changes to a section of the Patriot Act authorizing the collection of telephone records to increase the oversight and transparency of government surveillance. Obama also proposed creating a civil-liberties advocate to act as an adversary at the surveillance court, which one of the filed bills would authorize.
“It’s not enough for me, as president, to have confidence in these programs,” Obama said at a White House press conference. “The American people need to have confidence in them as well.”
Of the 10 pending bills that specifically mention the NSA or the oversight court and are designed to restrict or overhaul them, only one was introduced before the disclosure in June of surveillance and bulk data-collection programs leaked by Snowden, according to legislative records compiled by Bloomberg Government.
More measures may be introduced after lawmakers return next month from a five-week break.
The workings of the secret court may gain greater attention after its chief judge said that it isn’t able to verify independently what it’s told by the government when it seeks approval for surveillance initiatives.
The surveillance court “is forced to rely upon the accuracy of the information that is provided to the court,” U.S. District Judge Reggie B. Walton said in a written statement reported last week by the Washington Post.
Changes need to be made in the court “so it can better uncover and scrutinize and oversee potential abuses,” Democratic Senator Richard Blumenthal of Connecticut said yesterday on the Fox News program.
“I would establish a special advocate who would be responsible, in effect, for representing the Constitution,” said Blumenthal, who has introduced a bill, S. 1467, to do so.
A second bill by Blumenthal, S. 1460, would change how the judges are appointed. They’re currently selected by U.S. Chief Justice John Roberts. The bill would require the chief judge of each federal appeals court to nominate three candidates, and Roberts would then pick one from each circuit to fill out the court.
In the House, one measure, H.R. 2586, by Tennessee Democrat Steve Cohen, would direct that the court be comprised of 11 district court judges, three appointed by the chief justice and two each by the party leaders in the House and Senate.
Another bill, H.R. 2761 from California Democrat Adam Schiff, would give the appointment power instead to the president, with advice and consent of the Senate. That measure’s four original cosponsors include Democrat Steny Hoyer, the House minority whip from Maryland.
In the Senate, Paul filed a bill, S. 1121, that would restrict the NSA’s data-mining operations. It says simply: ‘The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.’’
Other measures include a proposal by Representative Sheila Jackson Lee, a Texas Democrat, that would generally deem the oversight court’s decisions, orders and opinions to be unclassified. Such reports that include “significant legal interpretation” of the act that governs surveillance would be declassified within 45 days of issuance under H.R. 2440, “unless such disclosure is not in the national security interest of the U.S.”
Democratic Representative Rush Holt of New Jersey has filed a bill, H.R. 2818, that would repeal the Patriot Act, which authorizes the surveillance programs.
California Democratic Representative Zoe Lofgren has introduced H.R. 983, which would block the bulk collection of geolocation and electronic communications data unless a warrant was issued, with exceptions for emergencies and foreign intelligence surveillance, or if the person individually consented.
Lofgren told Bloomberg BNA on July 29 that lawmakers are working on additional legislation including a measure that would allow Internet companies to publish data on surveillance requests they have received from the intelligence community.
For all of the calls for change, measures intended to place limits on the surveillance programs will face opposition from lawmakers who say there’s no evidence of real abuse by the NSA and a great need for its data-mining to find and track terrorists.
Representative Peter King of New York, who serves on the House intelligence committee, yesterday hit back at Paul, calling his fellow Republican’s portrayal of NSA abuses “a grab bag of misinformation and distortion.”
King, who said Obama has failed to defend the NSA vigorously enough, said “whatever mistakes were made were inadvertent” and the agency has a “99.99 percent batting average.”
“This whole tone of snooping and spying that we use, I think it’s horrible,” King, who also appeared on the Fox News program, said. “It is really a distortion and a smear and a slander of good, patriotic Americans.”