Change to Surveillance Reform Bill Could Nullify Ban on Mass Record Collection

The USA FREEDOM Act, the
surveillance reform bill that was
unanimously approved by the House judiciary and intelligence
committees earlier this month, has been
revised at the Obama administration’s request to loosen its
restrictions on data collection. The version approved by the
committees said demands for records, whether pursued through secret
court orders under Section 215 of the PATRIOT Act or through the
administrative subpoenas known as national security letters, had to
be based on a “specific selection term”—defined as “a term used to
uniquely describe a person, entity or account.” That provision was
aimed at banning the sort of mass collection that the National
Security Agency (NSA) used to build its controversial database of
telephone records. Instead of collecting information about the
entire population, the government would have to specify a target
(although in the case of phone records it still could have obtained
information about calls made and received by people up to two
“hops” away from the target). But the
new version of the bill, which is the one that will go to the
House floor, redefines “specific selection term” as “a discrete
term” that “limit[s] the scope of the information or tangible
things sought.”

While the White House insists that the bill still bans mass
collection of records, the practical impact of this revision could
be dramatic. The bill says a “specific selection term” could be “a
term specifically identifying a person, entity, account, address,
or device,” but it does not limit the meaning of the phrase to such
narrowly targeted data collection. Suppose the FBI,
acting on behalf of the NSA, seeks a Section 215 order for
information about every phone call made outside of Idaho. The
exclusion of Idaho could be interpreted as a discrete term limiting
the scope of the information sought.

If that scenario seems far-fetched, so does arguing that
information about every single call made by every single person in
the United States is “relevant” to a terrorism investigation
because some of those people might be terrorists. Yet that is the
argument the government made, and it was secretly accepted by the
Foreign Intelligence Surveillance Court (FISC), which approved mass
collection orders under Section 215 on that basis. As Harley
Geiger, senior counsel at the Center for Democracy and Technology,

tells The New York Times,
“The government has shown remarkable capacity to
creatively interpret terms that appeared clear, like ‘relevant,’
and this definition is ambiguous enough that it allows, if not
entire-population-scale collection, large-scale collection.”
 Acknowledging that danger, the latest version of the bill
requires that any FISC decision construing “specific selection
term” be publicly disclosed, at least in summary form.

The way that phrase is interpreted will determine the
scope of government access not just to phone records but to every
other kind of information that can be obtained through national
security letters or Section 215 orders. National security letters,
which do not require judicial approval, can be used to demand credit
reports and financial information as well as email and telephone
metadata. Section 215
specifically mentions medical, educational, library, book sale, gun
purchase, and tax records. But it is applies to “any tangible
things,” so it it
covers all sorts of records held by third parties, including
information about credit card purchases, cell phone locations,
travel, and online behavior. Under the interpretation that the
Obama administration used to justify the NSA’s phone record
dragnet, the government is authorized to collect not just some but
all such records, pertaining to every American, whether or not
there is any reason to suspect him of involvement in terrorism. As
Deputy Attorney General James Cole
explained last year, “If you’re looking for the needle in the
haystack, you have to have the entire haystack to look
through.” Given the definition of “specific selection term”
demanded by the administration, that requirement could amount to
nothing more than leaving behind a few pieces of straw.