Change to Surveillance Reform Bill Could Nullify Ban on Mass Record Collection


Senate Judiciary Committee

The USA FREEDOM Act, the surveillance reform bill that was unanimously approved by the House judiciary and intelligence committees earlier this month, has been revised at the Obama administration's request to loosen its restrictions on data collection. The version approved by the committees said demands for records, whether pursued through secret court orders under Section 215 of the PATRIOT Act or through the administrative subpoenas known as national security letters, had to be based on a "specific selection term"—defined as "a term used to uniquely describe a person, entity or account." That provision was aimed at banning the sort of mass collection that the National Security Agency (NSA) used to build its controversial database of telephone records. Instead of collecting information about the entire population, the government would have to specify a target (although in the case of phone records it still could have obtained information about calls made and received by people up to two "hops" away from the target). But the new version of the bill, which is the one that will go to the House floor, redefines "specific selection term" as "a discrete term" that "limit[s] the scope of the information or tangible things sought."

While the White House insists that the bill still bans mass collection of records, the practical impact of this revision could be dramatic. The bill says a "specific selection term" could be "a term specifically identifying a person, entity, account, address, or device," but it does not limit the meaning of the phrase to such narrowly targeted data collection. Suppose the FBI, acting on behalf of the NSA, seeks a Section 215 order for information about every phone call made outside of Idaho. The exclusion of Idaho could be interpreted as a discrete term limiting the scope of the information sought.

If that scenario seems far-fetched, so does arguing that information about every single call made by every single person in the United States is "relevant" to a terrorism investigation because some of those people might be terrorists. Yet that is the argument the government made, and it was secretly accepted by the Foreign Intelligence Surveillance Court (FISC), which approved mass collection orders under Section 215 on that basis. As Harley Geiger, senior counsel at the Center for Democracy and Technology, tells The New York Times, "The government has shown remarkable capacity to creatively interpret terms that appeared clear, like 'relevant,' and this definition is ambiguous enough that it allows, if not entire-population-scale collection, large-scale collection."  Acknowledging that danger, the latest version of the bill requires that any FISC decision construing "specific selection term" be publicly disclosed, at least in summary form.

The way that phrase is interpreted will determine the scope of government access not just to phone records but to every other kind of information that can be obtained through national security letters or Section 215 orders. National security letters, which do not require judicial approval, can be used to demand credit reports and financial information as well as email and telephone metadata. Section 215 specifically mentions medical, educational, library, book sale, gun purchase, and tax records. But it is applies to "any tangible things," so it it covers all sorts of records held by third parties, including information about credit card purchases, cell phone locations, travel, and online behavior. Under the interpretation that the Obama administration used to justify the NSA's phone record dragnet, the government is authorized to collect not just some but all such records, pertaining to every American, whether or not there is any reason to suspect him of involvement in terrorism. As Deputy Attorney General James Cole explained last year, "If you're looking for the needle in the haystack, you have to have the entire haystack to look through." Given the definition of "specific selection term" demanded by the administration, that requirement could amount to nothing more than leaving behind a few pieces of straw.