The House passed a gutted version of an NSA reform bill on Thursday, shifting the dimming hopes for change this year to the Senate.
The bill represents the first legislative response in either chamber to the leaks from former NSA contractor Edward Snowden last year. But critics say the House's version of reform is so full of loopholes that the bulk collection of Americans' phone records won't skip a beat.
The 303 to 121 vote in the House capped a week of intense negotiations between the bill's sponsors, House leaders, President Barack Obama's administration, and the spy agencies themselves. Those discussions resulted in a seriously watered down provision banning spying on Americans' phone habits.
"Let me be clear: I wish this bill did more. To my colleagues who lament the changes, I agree with you," said lead sponsor Rep. James Sensenbrenner (R-Wis.). "The negotiations for this bill were intense, we had to make compromises, but this bill still does deserve support."
Support from House leadership and key liberal Democrats like Reps. John Conyers (Mich.) and Jerrold Nadler (N.Y.) assured broad support for the bill, called the USA Freedom Act. But other members associated with civil liberties, Reps. Justin Amash (R-Mich.), Zoe Lofgren (D-Calif.) and Mike Honda (D-Calif.), had declined to back it.
Many advocacy groups and major internet companies like Google, Facebook, Twitter and Yahoo had already pulled their support for the bill. Their hopes turned to the Senate, where Sen. Patrick Leahy (D-Vt.) is sponsoring a companion measure aimed at reforming the NSA.
Opponents' concerns about the House bill centered around the NSA program that has generated the most public outrage, the bulk collection of Americans' phone records. New language inserted in the bill on Tuesday weakened the limits on what the NSA can request from telephone companies.
"Nothing in the definition specifically prohibits the government from using a very broad selection term, like area code 202 or the entire eastern seaboard," acknowledged Conyers. "But that concern is largely theoretical."
But other members were far less willing to give the government the benefit of the doubt. Bulk collection began because of a provision in the Patriot Act, passed in 2001, that allowed the NSA to scoop up any business records "relevant" to a terrorism investigation. Few at that time expected that the definition of relevance would be vastly expanded to include every American.
"Regrettably we have learned that if we leave any ambiguity in the law, the intelligence agencies drive a truck right through that ambiguity," Lofgren said, urging a vote against the bill.
There were also other concerns about the bill's weaknesses. Applications for surveillance at the secretive Foreign Intelligence Surveillance Court still would not face any sort of adversarial process. The NSA's ability to analyze data about innocent Americans that is already in its possession without any sort of protections would only be slightly limited. And the NSA may still be able to "reverse target" Americans' communications by searching through the content of emails or phone calls they have exchanged with foreigners.
The bill's curious and sometimes ambiguous language also concerned civil liberties advocates who warned that it may actually expand the NSA's powers in some areas. The New America Foundation's Open Technology Institute asserted it may give congressional approval to the agency's practice of searching Americans' communications abroad solely because they are "about" a surveillance target -- not with one. And journalist Marcy Wheeler suggested it gives Congress' seal of approval to the collection of metadata about Americans' emails and internet activity.
Civil libertarians were also concerned by not what is in the bill's text, but who supports its latest version: the White House issued a statement of support, and House Intelligence Chair Mike Rogers (R-Mich.), who strongly supports the spy agencies, also urged passage.
Rogers said the bill did more to rein in the NSA than he would have liked, but that he wanted passage to quell public outrage over the agency's actions.
"Our obligation to protect this country should not be held hostage by the action of a traitor or traitors," said Rogers.
Rep. Dutch Ruppersberger (D-Md.), the ranking member of the House Intelligence Committee, said that lawmakers who warned bulk collection will continue are "trying to scare you by making you think there are monsters under the bed. There aren't."
But even the bill's sponsors are still worried about those monsters, apparently. Nadler said he had concerns about the vastly weakened provisions against the NSA's searches of phone metadata.
"The USA Freedom act on the floor today certainly does not give us everything we want or need," he said. He added that he hopes further reforms will be made in the Senate.
Without passage of the House version, Nadler said, "a 'no' vote on this bill today may mean no reform at all."
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