At a recent event titled “A Statesman Forum on Cybersecurity Policy and Diplomacy” at George Washington University, House Intelligence Committee Chairman Mike Rogers (R-Mich.) stated:
Every investigation, every group that review it found no illegal activity, no abuses, and that it was lawful. It’s hard to say that there was some horrible rogue agency when all the groups that investigated it came to the same conclusion.Rep. Rogers is wrong. His statement, which referred to the National Security Agency’s data collection programs under Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861), ignores the report published by the Privacy and Civil Liberties Oversight Board (PCLOB) in January 2014 concluding that the NSA’s data collection programs under Section 215 are illegal. The findings of PCLOB—an independent federal agency established in 2004 to ensure that government surveillance does not overstep its lawful bounds—are worth revisiting after the USA FREEDOM Act, a bill intended to reform NSA surveillance activities, lost more than half of its sponsors last week following a new version of the bill out of the House Rules Committee. Section 215 is the provision of the USA PATRIOT Act, a 2001 law which amended the Foreign Intelligence Surveillance Act (FISA), that prescribes the conditions under which intelligence agencies, like the NSA, may gain access to information such as phone call data. This law has been the key legal justification for the NSA’s controversial metadata collection programs, which many people accuse the agency of using to collect domestic data. In June 2013, Edward Snowden, a former private contractor for the NSA, revealed documents to Glenn Greenwald and other reporters who used them to expose these programs. Since the revelation of these programs, there have been calls for congressional reform of the NSA and Section 215, even from the PATRIOT Act’s chief author, Rep. Jim Sensenbrenner. Of course, a key question surrounding reforms is whether the current programs were in fact legal under existing law. In January 2014, the Privacy and Civil Liberties Oversight Board became the first investigative group to conclude that the programs were illegal. Rep. Mike Rogers could claim that he was not aware of this report, except he made a public statement in response to the report back in early 2014. The recent panel at GWU happens to have coincided with a vote just one week before in which the FREEDOM Act, a bill intended to reform Section 215 data collection, passed the House of Representatives in a 303-121 vote. Interestingly, in the final vote, more than half of the original sponsors of the reform bill voted against it. Some cosponsors and privacy advocates argued that the version of the bill that emerged from the House Rules Committee was too watered down to provide the necessary reforms intended by the bill’s drafting. These dissenters are correct that the current bill does not go far enough to reform the NSA. The absence in the current bill of a public advocate for all future data requests means that the NSA is still allowed to be rubber stamped by the FISA courts on all future data requests. Although the bill purports to ban domestic data collection and storage, it provides no real checks and balances to stop current data collection. Absent new and strict reforms to curtail the NSA’s ability to collect data domestically, such programs will continue unabated.