With less than a week left until key provisions of the Patriot Act expire, as the Senate scrambles to reach an agreement on how to move forward, Sen. Dianne Feinstein, D-Calif., has introduced new legislation that she hopes will garner more support than the current reform measure.
Privacy advocates say Feinstein's bill would roll back a number of key provisions in the relatively modest USA Freedom Act reform measure, which passed the House with strong support but narrowly failed a Senate vote last week.
Section 215 of the Patriot Act, which the NSA says justifies its bulk collection programs that a federal court recently deemed illegal, is set to expire on June 1.
Like the USA Freedom Act, Feinstein's proposed bill would rein in Section 215 and end the NSA's bulk collection efforts, but her bill also contains a number of new mandates dictating how phone companies are allowed to store the data, which privacy advocates say is basically a re-creation of the NSA database in the hands of a private telecom company, according to The Guardian.
Feinstein's legislation would also scrap the USA Freedom Act's transparency reforms to the Foreign Intelligence Surveillance Court (FISA). FISA is the secretive court whose job is to "hear applications for and grant orders approving electronic surveillance anywhere within the United States," according to the Electronic Frontier Foundation.
The USA Freedom Act inlcudes measures requiring "all significant constructions or interpretations of the law by the FISA court be made public" and allows challenges of national security letter gag orders that the government sends to companies to force them to turn over user data, yet these and other reforms are not included in Feinstein's bill.
Feinstein's legislation also codifies into law a provision that would further enable the government to criminalize whistleblowers. Kevin Gosztola of Firedoglake noted that the bill prohibits "unauthorized disclosures" by an "officer, employee, contractor, or consultant of the United States" or any "recipient of an order" issued under FISA who "knowingly comes into possession of classified information or documents or materials containing classified information" of the U.S.
According to the new measure, anyone who "knowingly and willfully communicates, transmits or otherwise makes available to an unauthorized person, such classified information or documents or materials" could be imprisoned for up to 20 years, while anyone who "knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location" could serve up to one year in prison.
Privacy advocates were quick to point out how Feinstein's bill is significantly worse than the current reform measure, with one Senate Democratic staffer telling the Daily Dot, "It's hard to see who this bill is designed for."
Neema Singh Guliani, a legislative counsel at the American Civil Liberties Union (ACLU), said that the proposal "is significantly weaker than the reform bill being considered by Congress, which we believe needs to be strengthened to provide meaningful reform," according to the Daily Dot.
Feinstein's bill "inadequately limit[s] the government's ability to engage in broad surveillance" by further weakening the definition of "specific selection term," which is the search term that the government must use to request data.
The proposal for phone companies to hold customer data for two years is "both costly and antithetical to notions of privacy," said Guliani. "Overall, though the bill is labeled a 'reform bill,' it fails to adequately address the concerns of the public and puts in place concerning new data retention requirements."
According to Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation (EFF), Feinstein's bill is "neither an alternative nor a compromise," the Daily Dot reported.
"The Senate has two options: to Sunset Section 215 or to pass the USA Freedom Act," he said. "We'll see which one they choose on Sunday."
Both the EFF and ACLU have withdrawn their support for the USA Freedom Act as well, as they believe it doesn't go far enough to protect the privacy of Americans.
"Senator Wyden has serious concerns with this bill," an aide for Sen. Ron Wyden, D-Ore., who, along with Sen. Rand Paul, R-Ky., has been leading the push for Patriot Act reform, told the Guardian.
"At this point the USA Freedom Act is clearly the most viable path for surveillance reform."
