Senate bill would validate NSA's harvesting of records

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WASHINGTON -- Privacy advocates and at least one U.S. senator are expressing concern that legislation introduced Thursday would not only endorse the National Security Agency's collection of all Americans' phone records but also give the agency permission to collect massive amounts of their email records.

The bill to amend the Foreign Intelligence Surveillance Act, which advanced out of the Senate Intelligence Committee, would codify limits that a special court has placed on NSA's use of the records.

But if the FISA Improvements Act became law, Congress would be validating expansive powers that have been claimed by the NSA and upheld by a court -- but never explicitly written into statute -- to harvest the phone and email records of millions of Americans, the advocates say.

"The bill that the intelligence committee voted on this week would expressly authorize this bulk collection for the first time, and that would be a huge step backward for the rights of law-abiding Americans," said Sen. Ron Wyden, D-Ore., one of four committee members who voted against moving the bill.

Committee chairwoman Dianne Feinstein, D-Calif., who co-sponsored the 45-page bill with vice chairman Saxby Chambliss, R-Ga., has said the phone records program is legal and that while they want to place some limits on it, she will do "everything I can" to prevent it from being halted.

Committee staff disputed the critics' contention that the bill, which amends the "business records" provision of FISA, would authorize harvesting of email metadata. That includes the to-and-from lines, date and time stamp and file size.

Mr. Wyden and privacy advocates are also concerned that the bill would place in statute authority for NSA to search without a warrant for Americans' email and phone call content collected under a separate FISA surveillance program intended to target foreigners overseas. That is what Mr. Wyden has called a "back-door search loophole."

Aides note that the bill restricts the queries to those meant to obtain foreign intelligence information. Nonetheless, the bill's language, privacy advocates said, leaves room for the FISA court, which oversees NSA's domestic surveillance, to interpret it expansively. Moreover, the bill's effort to impose limits could also have the unintended effect of enabling authorities not currently claimed by the government, they said. That is because the bill's limits on bulk collection of "electronic communication records" could imply that no such conditions exist for mass collection of other types of records, such as tax or credit card records, they said.

A competing version of reform legislation is pending in Congress. The USA Freedom Act, co-sponsored by Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, and Rep. James Sensenbrenner, R-Wis., one of the original authors of the Patriot Act, would end the phone records program as part of a broader package of changes.

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