The bill allows the government to directly demand data from companies without court approval.
Rogers, center, meets with European leaders Image: House Permanent Select Committee on Intelligence
You might remember House Intelligence Chair Mike Rogers, a Republican from Michigan, from his lovely, universally-hated (by 14-year-olds, at least) CISPA cybersecurity bill that would have allowed nearly seamless information sharing between companies and the federal government. You might also remember him from his c’est la vie attitude towards civil liberties in general.
Well, we’ve got some good news and some bad news: Rogers announced today that he won’t seek re-election and is instead retiring from politics to start a conservative talk radio show on Cumulus. The bad news? He’s got at least one terrible, civil liberties-killing bill to try to push through Congress before he goes.
On the surface, the bill “ends bulk collection of metadata under the Foreign Intelligence Surveillance Act, including telephone, email, and internet metadata.” It also includes a ban on the bulk collection of library records, bulk firearm sales, medical records, tax returns, education records, and other sensitive personal records.
That would seem like a step in the right direction (though I am personally not opposed to the government knowing who is purchasing guns in bulk), especially because the outdated 1978 Foreign Intelligence Surveillance Act is the one that created the secret courts the NSA used to seize metadata records in the first place. But, as always, the devil is in the details. Yes, the bill would end bulk collection, but it wouldn't end overly broad, targeted information collection. Rogers’ new bill may inadvertently (or perhaps completely advertently) allow the government to completely bypass the judicial process and demand companies’ data without a court order.
The most concerning language comes in an amendment to the old FISA bill called Sec. 503, which makes it even easier for the government to demand data from companies. In the old FISA, security agencies could only ask for records if it pertained to a specific investigation. That’s not what the NSA was doing, but that’s how it was written into the law. Sec. 503 allows the government to ask for data without a court order, as long as they have a “reasonable articulable suspicion” that the target is a foreign power, is associated with a foreign power, or is in contact with (or known to) an agent of a foreign power. That’s a much lower bar, according to Amie Stepanovich, senior policy counsel at human rights organization Access.
“It lowers the standard, and by lowering it, they’re codifying the practices [the NSA] was already practicing,” she told me.
American Civil Liberties Union lobbyist Michelle Richardson said that the committee “uses reform momentum as a pretext for expanding government power.”
“We want to be clear. The House Intelligence bill is not a fix, it’s not even a half measure. It’s not the ACLU saying it doesn’t go far enough. The bill affirmatively does harm,” she said. “It’d allow the FBI to directly demand records without a national security subpoena that’s unprecedented in 35 years of FISA. For all its flaws, FISA has required prior judicial authorization. Repealing that and giving the FBI the authority to collect what it wants without judicial review is a huge step backward.”
The Rogers bill would basically allow the government to bypass the court whenever it deemed that it was moving too slowly, which is pretty obviously problematic.
The government would also only need to get court approval after spying has already taken place, a move that Harley Geiger of the Center for Democracy and Technology says gives government agencies "virtual subpoena power."
"The HPSCI bill would take some steps to ending the mass part of the surveillance but it would give federal intelligence agencies what looks like subpoena power over records," he said. "That is unprecedented. We do not have that system set up right now."
Rogers’ bill will compete with Wisconsin congressman Jim Sensenbrenner’s USA Freedom Act, a bill that has been supported by 163 members of Congress and has been vetted and supported by many civil liberties groups such as the Access, ACLU, CDT, and Demand Progress. That bill essentially brings more transparency to the FISA court and would put a civil liberties advocate on the FISA court.
The Freedom Act has had fairly wide support, but Rogers is known for getting what he wants. He pushed CISPA through the House without too many hang-ups and, as head of the Intelligence Committee, he’s got a lot of clout. He says he’s open to amending the new bill—but I wouldn’t hold your breath.