An Alternative Approach to 215 for the Senate

Without getting into all the different angles and arguments that are currently being made, this post is intended to offer an alternative way forward for Members of Congress that support aspects of the USA Freedom Act regarding transparency and accountability, but are concerned about scaling back surveillance authorities with an untested framework for the telephone metadata program: offer an alternative to USA Freedom that codifies the existing telephone metadata program consistent with how it is currently operating, and preserves the ability to conduct bulk collection under the tangible things and pen register/trap and trace provisions in the future. Given the Second Circuit’s opinion, the two extremes of either allowing 215 to sunset, or, authorizing a clean renewal, are not viable. Although in theory either option could possibly/possibly allow the current program continue for some period of time, there are two reasons that is unlikely: first, the Administration could interpret Congressional inaction as a vote against the program, and voluntarily end it; second, the FISC, when it next considers renewal, would need to address the Second Circuit’s opinion. I am not suggesting that the opinion is binding on the FISC; it’s not. But its existence would certainly have to factor in to a judge’s consideration of renewal. I’m not sure exactly how a judge on the FISC would weigh the opinion; I am sure it would matter. So, as I currently see it, there are two options: pass USA Freedom as it currently stands, or, offer a meaningful alternative. Here’s what an alternative could look like:

• It would keep all of the public and Congressional reporting provisions that are currently in USA Freedom. This would provide a new level of public and Congressional accountability, and enable the companies to report some of the additional information they have been advocating for.
• It would keep the amicus provision currently in USA Freedom. The version in the bill is far better than previous versions of the institutional advocate that were floated. It makes clear that the Court has the authority to request an outside legal or technical view in appropriate circumstances. (One clarification I think the bill needs on this point: who can trigger the amicus – a single judge of the court, the court en banc, or the Presiding Judge? I also wonder whether the provision about the court having to report to Congress when it chooses against using an amicus is a good idea, for a variety of reasons.)
• It would codify the telephone metadata program as it currently exists. Remember that the Obama Administration has made substantial changes to the program since it was first revealed—these include limiting the number of “hops” and increased FISC involvement. So the program as it exists today is not the same as it was two years ago. This approach would give Congressional approval to the current process, and therefore address the Second Circuit’s ratification argument. This approach would also be better for national security because it places the decision to end the program – if and when it ends - in the appropriate hands: national security leadership in the best position to determine its value and effectiveness. That decision could be made tomorrow; it could be made next month; or next year. But it should be made based on value and related factors; not politics.

Now, supporters of USA Freedom will counter that this proposal takes out the most important provision of the bill: the prohibition on bulk collection. But, the truth is, USA Freedom’s definition of specific selection term could/could be interpreted to allow very large collection anyway (so-called “bulky” collection). Which is why I have come to believe that, after the debate that has taken place, the worst possible outcome is an opaque bill that says one thing but can be interpreted to do another. Every different variation of specific selection term will be potentially subject to amicus-led challenge. That’s no way to conduct foreign intelligence collection. Moreover, the proposal in USA Freedom that places the data with the providers is an untested process: no one knows whether it will work. It can’t possibly be as speedy or agile as the current process. And without retention requirements, there is no guarantee that the data will be there when the government shows up with its court order. The bottom line is, that until the Supreme Court says otherwise, the information collected in the telephone metadata program is just digits dialed in a sea of numbers. The existing program does not collect personably identifiable information. Congress has an opportunity to authorize the current program, while also increasing transparency and accountability. Just an option.