Key House and Senate lawmakers are pushing to end a long-troubled National Security Agency surveillance program that gathers records of Americans’ telephone calls and text messages in search of potential terrorist connections.
The bipartisan effort reflects a remarkable political shift. For years, the program — which allows the country’s largest intelligence organization to gain access to massive troves of Americans’ domestic communications — enjoyed the support of Republicans, Democrats, the intelligence community and every administration from George W. Bush to Barack Obama to Donald Trump.
Lawmakers even voted five years ago to alter the NSA surveillance program but failed to terminate the clandestine system that Edward Snowden exposed in 2013.
But a newfound appetite for curtailing U.S. surveillance practices has emerged among Republicans who have criticized the FBI’s eavesdropping of former Trump campaign adviser Carter Page, making them willing to buck the Trump administration’s demands that the program be permanently extended.
And intelligence officials aren’t making the case to keep to phone records program, either. They’ve previously admitted it has become too technically complex a burden to maintain.
Longtime privacy advocates on the Hill are seizing on this momentum to kill the program they’ve argued is ineffective and violates Americans’ rights before the statute authorizing it expires on March 15.
“This is a big moment for reformers,” Sen. Ron Wyden (D-Ore.), a senior member of the Senate Intelligence Committee, who is looking to push for greater surveillance changes given this new climate in Congress, told POLITICO this month.
Intelligence Chairman Richard Burr (R-N.C.) and Virginia Sen. Mark Warner, the panel’s top Democrat, introduced legislation that would render the program essentially inoperable while renewing the law’s other surveillance authorities — predominantly used by the FBI — for another eight years.
“I plan to propose to leadership that we move, in some fashion, [our] bill,” Burr said.
Senate Judiciary Chairman Lindsey Graham (R-S.C.), whose panel held a contentious public hearing with an NSA official who couldn’t offer examples of the program helping in terror probes, said the proposed legislation “works” for him.
Meanwhile, in the Democrat-controlled House, the Judiciary and Intelligence committees have been working together for months on a bill that would pull the plug on the surveillance tool once and for all.
The panels are writing a “proposal that will both renew authorities necessary to the protection of national security, while also bolstering additional privacy and transparency safeguards where appropriate,” a senior Democratic House Intelligence Committee official told POLITICO.
“Obviously, time is of the essence, and we hope to come to [a] consensus in the coming month or so,” the official added.
A House Democratic aide said the program “was built to address an adversary and a technological gap that existed 25 years ago,” but times have changed. “Bad guys don't use landlines to talk to each other anymore … The technology is different. It is less valuable to us today than it was than it would have been in 2001 when they needed it.”
But a critical player is Senate Majority Leader Mitch McConnell (R-Ky.), who has yet to indicate he would buck the White House over the intelligence tool. A McConnell spokesperson declined to comment, and a spokesperson for the National Security Council did not respond to a request for comment from POLITICO about the broad resistance from Congress.
The NSA gained the ability to access and analyze Americans’ domestic calling records shortly after 9/11. Established in secret, the program was designed to vacuum up metadata — the numbers and time stamps for calls or text messages but not the actual content — so the agency could sift for links among possible associates of terror suspects.
The Snowden leaks eventually forced the Obama administration and Congress to settle on a new law, the USA Freedom Act, that ended NSA’s bulk phone collection but allowed the records to be retained by telephone companies and accessed by the federal government with court approval.
Problems with the revised system began to emerge publicly in 2018 when the NSA announced it had uncovered “technical irregularities” that caused it to collect more phone records than it had legal authority to gather. The agency dumped its entire collection of phone records. However, the problem soon resurfaced, according to an inspector general report.
The recurring compliance headaches around the program, its negative association with Snowden and an inability by intelligence leaders to offer concrete examples of its value in fighting terrorism led a spectrum of observers — including former and current intelligence officials —to question if the scaled down system was worth keeping at all.
The administration had been quiet about its intentions for the future of the program. That’s a contrast to 2017 when the White House and the intelligence community successfully pressed lawmakers to renew a separate set of warrantless programs that intercept digital traffic of foreign targets while collecting personal information on Americans.
In March, a senior congressional aide revealed that the NSA had deactivated the domestic surveillance program. Then-Director of National Intelligence Dan Coats confirmed that fact in a letter to Congress in August, which acknowledged that the system has been indefinitely shut down but still asked lawmakers to extend its legal basis.
On Capitol Hill, the urge to strike the program from the books only grew. But in December, lawmakers were forced to include language in a stopgap government funding bill that punted the deadline for the surveillance programs by 90 days, until March 15.
The move was made, in part, because the House impeachment inquiry dominated much of the congressional calendar and to wait for potentially consider additional surveillance reforms, some of which were highlighted by Justice Department Inspector General Michael Horowitz’s review of the FBI’s handling of its investigation of the Trump campaign in 2016.
“A lot of very smart people had a notion that it would be a bad idea for us to pass a bill the first week of December and to have an IG report detailing the inner depths of the FISA process come out the second week of December and then look foolish,” the House Democratic aide told POLITICO.
The aide said that on “big ticket questions” there isn’t “a lot of daylight” between the existing Senate bill and the one that will be produced by the House Judiciary and Intelligence panels, though an eight-year extension of the other authorities isn’t likely to pass the lower chamber.
Other issues could also complicate the short window left for lawmakers to take up the surveillance law.
This week, Wyden and a bipartisan group of House and Senate lawmakers introduced a bill that would end the program, codify an intelligence community decision to stop location-tracking surveillance activities, and change the process for obtaining court approval for surveillance, while proposing additional transparency measures.
“To pass a bill where everybody says the thing doesn't work … and we're just going to write into law what they're already doing and then call it a day, I think, would be very unfortunate because there's a lot more to do,” Wyden said.
But additional changes appear to be a non-starter for Burr, who advised Wyden and others to “introduce legislation” if they want to see them enacted.
Elizabeth Goitein, a privacy advocate and co-director of the Liberty & National Security Program at the Brennan Center for Justice, said offing the program should be the “bare minimum” lawmakers try to achieve.
“When you have a surveillance program that has collected more than a billion records of Americans — some of them without legal authorization, and all of them without any significant benefit — it’s a no-brainer that the program should be terminated,” she said.
The House aide said the expectation is for legislation to be introduced and voted on, at least by the Judiciary Committee, before going to the full chamber before the March 15 deadline. An overwhelmingly bipartisan House vote could send a message to the Senate to get on board with its bill.
Burr suggested that any extension would have to be hitched to another must-pass bill — something in short supply this time of year. Such a move would prevent the legislation from being jammed on the floor by privacy hawks like Wyden and Republican Sens. Rand Paul (Ky.) and Mike Lee (Utah).
Burr didn’t rule out another short-term extension, either.
“I’m not going to rule out that we may have an effort by leadership to extend the authorization another 90 days or 60 days or something,” Burr said.
“We still have to do it. This is a must do.”