In NSA Bills, the Devil Is in the Details

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Sen. Patrick Leahy says that his USA FREEDOM bill will stop the NSA’s bulk collection of phone data. H.L. Pohlman says it’s not quite that easy:

In Presidential Policy Directive (PPD-28) issued in January 2014, the Obama administration defined “bulk collection” as the acquisition “of large quantities of signals intelligence data which . . . is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).” Thus, as long as the government uses a “discriminant,” a selection term, no matter how broad that term might be, the government is not engaged in a “bulk collection” program.

….The USA FREEDOM Act does not guarantee, then, that the government’s database of telephone metadata will be smaller than it is now. It all depends on the generality of the selection terms that the government will use to obtain metadata from the telephone companies. And we don’t know what those terms will be.

This is a longstanding issue that’s been brought up by lots of people lots of times. It’s not some minor subtlety. If the government decides to look for “all calls from the 213 area code,” that’s not necessarily bulk collection even though it would amass millions of records. It would be up to a judge to decide.

If and when we get close to Congress actually considering bills to rein in the NSA—about which I’m only modestly optimistic in the first place—this is going to be a key thing to keep an eye on. As the ACLU and the EFF and others keep reminding us, reining in the NSA isn’t a simple matter of “ending” their bulk collection program. The devil is truly in the details, and tiny changes in wording can literally mean the difference between something that works and something that’s useless. Or maybe even worse than useless. As Pohlman points out, if you choose the right words, the NSA could end up having a freer hand than they do today. This is something to pay close attention to.

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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