House compromise on NSA reform: how it balances freedom and security

The House Judiciary and Intelligence committees reached a compromise on the proposed USA Freedom Act, which would ban NSA collection of metadata, but allow the Justice Department emergency access. 

The House heads into a week-long break with a significant achievement under its belt: Two rival committees have agreed on a bill to reform massive phone surveillance by the National Security Agency – a counterterrorism activity first revealed by Edward Snowden last year.

The USA Freedom Act would ban such bulk data collection by the NSA, although allow the Justice Department to gather it in an emergency, and is expected to head to the House floor for a vote sometime this month. Given the unanimous approval of the bill by both the House Judiciary Committee and the House Intelligence Committee, it should have no trouble passing the full chamber on a bipartisan basis.

A compromise between the two committees – one of which puts the nation’s security interests front and center while the other makes privacy rights a priority – indicates “the emerging consensus on how to reform our surveillance authorities while preserving the capabilities we need to protect our nation,” said Rep. Adam Schiff, (D) of California, in a written statement Thursday. Mr. Schiff is a member of the Intelligence Committee.

The bill, which generally meets guidelines outlined by President Obama in January, has two main components: the collection of data, and the government’s access to that data.

The proposed act would end NSA bulk collection of phone metadata – phone numbers, time, and duration (though not content) of calls – and directs that the storage of such information reside with phone companies. The companies wouldn’t keep the data any longer than they normally do. The bill also bars the NSA from collecting personal data, such as financial, health, and legal information.

To get to the data, the government would have to receive judicial approval from a court authorized by the Foreign Intelligence Surveillance Act (FISA) before it could query a phone company for records. This is where the main compromise between the two committees was struck. The leaders of the Intelligence Committee sought after-the-fact judicial approval. That demand fell away after the Judiciary Committee amended the bill to allow the Justice Department to collect metadata on its own in emergency situations.

The bill also provides for a panel of experts to advise the Foreign Intelligence Surveillance Court (FISC) on privacy, technical, and legal matters.

Despite the unanimity on the panels approving the bill, the USA Freedom Act still has a ways to go before becoming law. Intelligence Committee members still want to tweak the bill before it gets to the floor to expand its purview beyond counterterrorism to include counterintelligence.

“If Iran or Russia or North Korea are plotting to do something, we want that information,” said Rep. C.A. Dutch Ruppersberger (D) of Maryland, the ranking member on the intelligence panel. “Russia and China and proliferation issues are just as big of a threat as terrorists are,” he said, according to Roll Call.

Meanwhile in the Senate, a companion bill to the original Freedom Act exists, but its sponsor, Sen. Patrick Leahy (D) of Vermont, who chairs the Senate Judiciary Committee, has some reservations about the compromise bill approved by the House panels. For instance, he’s seeking a stronger advocate for privacy in the FISA court and greater transparency. He says his committee will take up the Freedom Act this summer.

Key members of the Senate Select Committee on Intelligence generally supported the USA Freedom Act, but also want to make some changes.

The current provision relating to phone records collection in the USA Patriot Act will expire in June 2015. If Congress does not pass a reform bill before then, lawmakers are expected to simply let that Patriot Act provision expire.