House Ends Bulk Collection of Phone Records, But Keeps Door Open to “Bulky” Collection

Justin Amash, one of the original sponsors of the House bill that would eliminate the NSA’s bulk collection of phone records, voted against the amended version of the act that passed the House today:

Amash said that the bill, which was originally drafted by Rep. Jim Sensenbrenner, R-Wis., was “so weakened” by behind-the-scenes negotiations that it allows the government to order large swaths of American phone records “without probable cause.” For example, the government could order AT&T to turn over all phone records for a particular area code or for “phone calls made east of the Mississippi,” according to Amash.

Is this true? It’s surprisingly hard to get a good read on it. Marcy Wheeler has written about this several times, and if I’m reading her correctly (not always a good assumption) her objection is based on a two-step interpretation.

First, the amended bill says that records to be collected must be identified by a “specific selection term,” which is defined as “a term used to uniquely describe a person, entity, or account.” The problem here is with the word entity, which can be defined pretty broadly. What’s worse, a later amendment broadened the definition even further to mean “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.”

Second, specific selection terms are “to be used as the basis for selecting the telephone line or other facility.” The combination of entity and as the basis for could provide a legal basis for very wide record collection. It wouldn’t allow collection of every record, as now allowed, but it could be pretty broad-based.

This is very hard for a layman to parse. It’s enough for the EFF to call the bill “gutted,” while the ACLU—though opposed to the wording changes—continues to support it. But just barely: “Any time they introduce ambiguity, which is what these changes do, that is a very worrying thing for us, because that is what got us here in the first place,” said Patrick Toomey of the ACLU. “Without there being a more precise definition, it seems like they’re opening the door to very bulky collection.”

So perhaps that’s where we are. Our shiny new bill prohibits bulk collection, but keeps the door open for bulky collection. But just how bulky? Unless another Edward Snowden comes along a few years from now, we may never know.