The recent disclosures are having an impact on the Hill. | POLITICO Staff NSA backlash hits privacy bills

Congress may have the NSA leaks to thank for tipping the scales on privacy legislation.

Recent disclosures about government surveillance programs have reinvigorated hope for a bill that tightens personal privacy rights and torpedoed chances for another that gives more authority to law enforcement.


The revelations offer an opening for updates to the Electronic Communications Privacy Act, which would require law enforcement to get a warrant before searching personal emails. And despite a push by the Obama administration, members have gone silent on a bill to expand federal wiretapping capabilities — the Communications Assistance for Law Enforcement Act.

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While little known beyond Capitol Hill or inner tech circles, the bills help determine the limits of governmental reach in an increasingly digital world. The National Security Agency narrative isn’t tied directly to either issue — the bills focus more on traditional law enforcement’s access to communications data — but it has still rearranged politics over the role authorities play in Americans’ lives online.

“The fact that the public is now aware of this issue — and everything that has come out about the NSA — is likely to cause a lot of people to focus on privacy and in particular online privacy and the privacy of their emails,” Sen. Mike Lee (R-Utah) said in an interview. “There’s absolutely political will for it.”

Both efforts have a dedicated set of proponents: a contingent of leading tech groups in support of email privacy reform and law enforcement officials uncertain how they’ll track criminals without a wiretapping update.

The email privacy issue had some momentum even before this summer. Senate Judiciary Chairman Committee Patrick Leahy (D-Vt.) has co-sponsored a reform bill with Lee and already cleared it through his panel. And House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has pledged to prioritize the issue this Congress. The lower chamber, just this year, has held two hearings and filed three email privacy bills.

Now, it’s an even easier lift. Reforming the electronic communications law allows legislators to check the privacy box without wading into the intelligence debate.

Rank-and-file lawmakers have recognized this — and want a piece. A House companion to the Leahy-Lee reform bill — introduced by GOP Reps. Kevin Yoder of Kansas and Tom Graves of Georgia — has more than 100 co-sponsors, 22 of whom came after the first NSA disclosures.

“Everyone’s hearing about it from their constituents from home, and so they want to have legislation they can sign on to respond to it,” Yoder said.

That’s if they can move the bill forward. The Senate, in particular, needs to figure out how to handle civil agencies that don’t have the authority to secure a warrant. They fear the requirement would crush their investigative capabilities. And in the House, it comes down to time. Reforms face a legislative calendar already jammed with immigration legislation and a debt ceiling debate.

The wiretapping issue is a bit more complicated.

That law, passed in 1994, originally required phone companies to install equipment with surveillance capabilities. The Federal Communications Commission expanded the measure’s scope in subsequent years to include broadband service providers. Now, the FBI wants to stretch it further to include instant messaging and social network sites — and has proposed fining companies that do not follow wiretap orders. The White House has not officially backed the plan.

FBI Director Robert Mueller, at a Senate Judiciary Committee hearing last month, emphasized the need to go after criminals online and pointed to “a growing gap” between law enforcement’s legal authority to conduct electronic surveillance and its actual ability to do so.

“Because of this gap, law enforcement is increasingly unable to gain timely access to the information to which it is lawfully authorized and that it needs to protect public safety, bring criminals to justice and keep America safe,” he said in prepared testimony.

The agency, Mueller said, needs to avoid “going dark.”

A recent federal report bolstered those claims. The Administrative Office of the United States Courts noted that for the first time, scrambled code prevented authorities from accessing information.

The number of wiretaps approved in federal criminal investigations in 2012 soared 71 percent from the previous year, with a 5 percent bump in state and local use. Wiretaps of encrypted systems, though, accounted for just 15 of the 3,395 wiretaps authorized by federal and state judges.

Congress gave the wiretap proposal a chilly reception even before the NSA surveillance story broke. House Judiciary Committee ranking member John Conyers (D-Mich.) has denounced expansions in previous years, saying such an edict would have “far-reaching consequences.” His office declined to comment for the story.

Leahy, who sponsored the initial law, went after the FCC when it broadened the rules. “Any extension of CALEA — a law written for the telephone system in 1994 — to the Internet in 2005 would be inconsistent with congressional intent,” he said in a statement at the time.

The Senate Judiciary Committee, which has held talks on the law for at least a year, does not have plans to address it anytime soon. And a House Judiciary Committee aide called an update “one of the many issues we need to look at as we continue to conduct oversight over the laws that govern law enforcement and other anti-terrorism laws.”

“I see a tough road ahead” for the wiretap update, Senate Judiciary Committee minority counsel Nick Podsiadly said at a recent National Cable and Telecommunications Association conference.

The surveillance leaks have caused other ripple effects. House Homeland Security Committee Chairman Mike McCaul (R-Texas) said they have slowed down progress on cybersecurity reform. And they’ve prompted a handful of bills — including one from Leahy — that would revise the PATRIOT Act and boost transparency for the Foreign Intelligence Surveillance Court, which sits at the center of the NSA debate.

The proposed wiretapping expansion, on the other hand, barely gets a peep.

“Congress appears to be divided not along partisan lines but other lines on this issue,” said privacy advocate Rep. Zoe Lofgren (D-Calif.) “And I don’t know where the weight of opinion is yet.”