The L.A. Times, and just about every other media organization out there, is pushing the story that the House of Representatives just voted to restrict bulk collection of data:
House votes overwhelmingly to end NSA’s mass collection of phone records
The House overwhelmingly passed a bipartisan bill Wednesday to dial back the once-secret National Security Agency program that collects and stores data from nearly every landline or cellphone call dialed or received in the United States.
The bill passed, 338 to 88, with Democratic and Republican majorities determined to rein in a domestic intelligence program that sparked sharp concerns in Congress about violations of privacy and civil liberties.
The House bill faces a hurdle in the Senate, however, where GOP leaders are backing a bill to renew the controversial NSA program through 2020 either unchanged or with minor amendments.
As usual, the media spin is misleading. In fact, what is going on here is that bulk collection has been statutorily authorized for the first time — and the bill could authorize turning over that data as to an entire state. U.S. Congressman Justin Amash explains:
H.R. 2048 threatens to undo much of the progress resulting from the Second Circuit’s opinion. The bill’s sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends “bulk” collection. It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.
H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.
Indeed, the Second Circuit encouraged Congress in reforming Section 215 to make a “congressional judgment as to what is ‘reasonable’ under current circumstances.” Unfortunately, “specific selection term” is defined so broadly under the bill as to have little effect on narrowing the scope of items the government may obtain through a 215 order.
A “specific selection term” may be a specific person (including a corporation, such as Western Union), account, address, or personal device, but it also may be “any other specific identifier,” and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it’s not the only identifier used as part of the specific selection term. In other words, the bill doesn’t let the government require Verizon to turn over all its records without limitation, but nothing appears to prevent the government from requiring Verizon to turn over all its records for all its customers in the state of New York. Only a politician or bureaucrat wouldn’t call that “bulk.”
H.R. 2048 gives our intelligence agencies, for the first time, statutory authority to collect Americans’ data in bulk. In light of the Second Circuit’s opinion that the NSA has been collecting our information in bulk without statutory authority for all this time, it would be a devastating misstep for Congress to pass a bill that codifies that bulk collection and likely ensures no future court will ever again be positioned to rule against the government for over-collecting on statutory grounds.
H.R. 2048 falls woefully short of reining in the mass collection of Americans’ data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment to the Constitution. Americans, and members of Congress, should demand that Congress instead pass the original, bipartisan version of the USA FREEDOM Act from 2013, which strengthened—not weakened—Section 215’s relevance standard to end bulk collection, while still allowing the government the flexibility it needs to pursue genuine threats against the United States.
It reminds me of the ObamaCare subsidies to states that did not establish an exchange. Everyone says the Republicans need to “restore” those subsidies. But if the Supreme Court rules the right way, that means the subsidies were never statutorily authorized to begin with. There is nothing to “restore” — so the question becomes: will Republicans be the ones to authorize more socialistic/progressive welfare transfer payments to undermine the free market in yet another area of life? (The answer: yes. Yes, they will.)
Statutes are supposed to mean what they say. But that’s small comfort in the World of Obama, where laws mean what the Emperor says they mean.