Editorial: Leahy bill a step toward rebalancing privacy, national security

This opinion from the Los Angeles Times does not necessarily reflect the views of The Spokesman-Review editorial board.

A little more than a year after former National Security Agency contractor Edward Snowden revealed that the federal government was collecting the telephone records of millions of Americans, Congress is poised to end the program and provide significant protection for a broad range of personal information sought by government investigators.

Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, has proposed a version of the bill that is significantly more protective of privacy than one passed by the House. Like the House bill, Leahy’s proposal would end the NSA’s bulk collection of telephone “metadata” – information about the source, destination and duration of phone calls that investigators can “query” in search of possible connections to foreign terrorism.

But the Senate version, worked out in negotiations with the White House and civil liberties groups, imposes stricter limits on the search terms. For example, the bill makes it clear that the government may not use a search term that would collect all information relating to a particular service provider or geographic region.

The Leahy bill contains other reforms, including a requirement that the government provide periodic reports about the number of individuals whose information has been collected under various programs. It also would change the rules governing the Foreign Intelligence Surveillance Court, which interprets the law in secret. Under the Leahy bill, the court would appoint no fewer than five lawyers who would “advocate, as appropriate, in support of legal interpretations that advance individual privacy and civil liberties.”

Finally, the bill provides for the declassification and publication “to the greatest extent practicable” of opinions by the Foreign Intelligence Surveillance Court and its appellate arm, the Foreign Intelligence Surveillance Court of Review.

The Leahy bill addresses in only minor ways the collection of information about Americans as a byproduct of the electronic surveillance targeting foreigners living abroad. These activities capture the contents of phone conversations, emails and social media postings, meaning an American in contact with a friend or relative abroad can be swept up in the dragnet.

A panel appointed by President Barack Obama recommended that information be “purged upon detection” unless it has foreign intelligence value or is necessary to prevent harm to others. Information about a U.S. citizen or permanent resident couldn’t be used in a legal proceeding against him.

For all its limitations, Leahy’s USA Freedom Act testifies to the importance of informed public debate. Snowden’s disclosures brought into the open a dramatic expansion of government power. As a result, liberal Democrats in Congress joined libertarian Republicans in pushing back against an overweening national security establishment.

Even Obama has endorsed an end to the bulk collection program. His signature on the bill should be the beginning, but not the end, of an overdue recalibration of the balance between national security and personal privacy.