WASHINGTON — Privacy advocates and at least one U.S. senator are expressing concern that legislation introduced last week would not only endorse the National Security Agency's collection of all Americans' phone records, but also give the agency permission to collect massive amounts of their email records.
The bill to amend the Foreign Intelligence Surveillance Act, which advanced out of the Senate Intelligence Committee, would codify limits that a special court has placed on the NSA's use of the records.
But if the measure became law, Congress would be validating expansive powers that have been claimed by the NSA and upheld by a court — but never explicitly written into statute — to harvest the phone and email records of millions of Americans, the privacy advocates say.
The bill "would expressly authorize this bulk collection for the first time, and that would be a huge step backward for the rights of law-abiding Americans," said Sen. Ron Wyden, D-Ore., one of four committee members who voted against moving the bill.
Committee Chairman Dianne Feinstein, D-Calif., who co-sponsored the 45-page bill with Vice Chairman Saxby Chambliss, R-Ga., has said that the phone records program is legal and that while they want to place some limits on it, she will do "everything I can" to prevent it from being halted.
Committee staff disputed the critics' contention that the bill would authorize harvesting of email metadata. That includes the to and from lines, date and time stamp and file size.
The NSA in 2011 halted a program to gather email metadata in bulk because it was not operationally useful, officials have said. Nonetheless, Wyden and others said, they fear that codifying the authority could renew efforts to harvest such data.
Wyden and privacy advocates are also concerned that the bill would place in statute authority for the NSA to search without a warrant for Americans' email and phone call content collected under a separate FISA surveillance program intended to target foreigners overseas. That is what Wyden has called a "back-door search loophole."
Committee aides note the bill restricts the queries to those meant to obtain foreign intelligence information. They say that there have been only a small number of queries each year. Such searches are useful, for instance, if a tip arises that a terrorist group is plotting to kill or kidnap an American, officials have said.
Nonetheless, the bill's language, privacy advocates said, leaves room for the FISA court, which oversees the NSA's domestic surveillance, to interpret it expansively. They point as precedent to the recent revelation that the court, which operates in secret, had authorized the sweeping phone records collection based on what they say is an elastic reading of a statute.
That statute — also known as Section 215 of the Patriot Act — requires that the records sought be "relevant" to an authorized foreign terrorism investigation. The FISA court interpreted "relevant" to include all call logs held by U.S. phone companies, enabling the NSA's amassing of billions of domestic phone records.
"The court accepted the NSA's argument that all of the records qualified as relevant because a tiny fraction of them might prove to be relevant in the future," said Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program. "It turned what was supposed to be a limiting principle into a license to cast a dragnet."