Sen. Mark Udall says the House-passed bill isn't the true reform he demanded. Senate panel split on surveillance

As a Senate panel took its first look Thursday at a key surveillance reform bill on the one-year anniversary of Edward Snowden’s first disclosures, lawmakers agreed on only one thing: The measure needs work.

There was plenty of disagreement as to whether the USA Freedom Act, which is designed to end the government’s bulk collection of phone records and force the government to ask telecommunications companies for the information, is too weak or too strong.


Technology companies and privacy organizations worried about surveillance have warned — as some lawmakers did Thursday — that the measure doesn’t go far enough to actually prevent the bulk data collection it tries to ban. But several other lawmakers worried that putting phone companies in such a pivotal position for national security was a mistake.

“I believe the House-passed bill … is not the true reform I have demanded and many other Americans have for years,” said Sen. Mark Udall (D-Colo.).

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Ranking member Saxby Chambliss (R-Ga.), on the other hand, found the bill too aggressive: “It seems to me that swapping the current program out for an untested system may be a pretty bad deal from a national security perspective and for the American people.”

The divergent approaches — especially for a bill that passed the House by a nearly 3-to-1 margin — reflect the challenge that tech companies and Americans wary of government surveillance have to wrangle with as they pursue reform. Many, including those in Silicon Valley, have pushed for changes over the course of a full year but are still unhappy with the legislation that now stands the best chance of getting passed. And in the Senate, they’ll have to grapple with some of the lawmakers most opposed to any changes.

Tech firms — including Apple, Facebook, Google, Yahoo, Twitter and Microsoft — marked the Snowden anniversary by reiterating the need for a stronger prohibition on bulk data collection and better transparency provisions, sending an open letter to the Senate laying out their concerns. They scored a small victory from Senate Intelligence Chairwoman Dianne Feinstein (D-Calif.), who agreed that the bulk collection ban was unclear in the bill and could be improved.

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Witnesses from the intelligence community said Thursday they’re willing to work toward better clarity in the legislation — which the Obama administration helped craft during negotiations in the House. But they said it doesn’t need a complete makeover.

“We’re trying to end the bulk collection, but we’re trying to allow enough flexibility to get in time the volumes of records that may be important to do these investigations — but still keeping them focused,” Deputy Attorney General James Cole said. “We’re happy with the language that’s there and we’re happy to work with you on additional language if that’s necessary.”

Cole added that in addition to the current language, statements by lawmakers and intelligence officials clearly outlining the desire to ban bulk collection will make it easy for judges on the secretive Foreign Intelligence Surveillance Court to properly interpret the bill.

But even if tech firms can secure clearer rules on that front, the bill’s path forward in the upper chamber is still murky. Senate Majority Leader Harry Reid (D-Nev.), for example, has yet to weigh in substantially on the bill, and the Senate Judiciary Committee — whose chairman, Patrick Leahy (D-Vt.), wants to further strengthen the measure — has to review it as well.

Thursday’s hearing underscored the tenuous support for the bill — at least in the Intelligence Committee. Udall and Sen. Ron Wyden (D-Ore.) think that the bill is too weak, while Sens. Dan Coats (R-Ind.), Jay Rockefeller (D-W.Va.) and Chambliss indicated they were worried about relying too heavily on phone companies to sufficiently retain call data.

Technology companies have become increasingly vocal about the measure’s problems since the delicate compromise crafted by House lawmakers, aides and administration officials was unveiled last month. Companies like Google, Microsoft and Yahoo have pushed for broader transparency rules since Snowden’s first disclosures, but their biggest worry now is whether the bill actually bans bulk collection of metadata.

Silicon Valley companies and privacy organizations alike want to see changes in the measure before it gets to the president’s desk. But aside from lawmakers who say the bill goes too far, they are facing an intelligence community that has largely already laid out — in negotiations for the House bill — what reforms it is willing to accept. Whether the administration will follow through on working to clarify some of the bill’s provisions is a key question for reformers.

To jump start the push for reform in the Senate, tech giants including Facebook’s Mark Zuckerberg and Twitter’s Dick Costolo published an open letter to the Senate in The New York Times, Washington Post and POLITICO on Thursday, urging a bill that ensures “U.S. surveillance efforts are clearly restricted by law, proportionate to the risks, transparent, and subject to independent oversight.” The letter was sent the same day as “Reset The Net,” a campaign to bolster web security tools. Google, Mozilla and Reddit each contributed to that effort.

Pro-reform lawmakers, companies and nonprofits have one tool on their side that often works against them: the clock. The bulk collection authorities in the PATRIOT Act expire next June, and reformers could try to use the threat of letting that power expire to inspire more favorable terms in any USA Freedom Act compromise. Many lawmakers say they think Congress wouldn’t vote to reauthorize the law as is if a vote were held today.

“When the time comes for these sections of the PATRIOT Act that sunset next year, there’s gonna be chaos,” Feinstein said. “There’s a high likelihood that we get left with nothing.”

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