Lynch Introduces Legislation to Enhance Accountability and Transparency in NSA Phone Surveillance

Jul 16, 2013

Congressman Lynch recently introduced H.R. 2684, the Telephone Surveillance Accountability Act of 2013.  Importantly, this legislation would enhance judicial oversight over the broad collection of domestic phone records by the National Security Agency and require the Federal Bureau of Investigation to report on its searches of bulk telephone data to Congress on a monthly basis.

As explained by intelligence community officials in recent public statements and congressional hearings, the “telephony metadata” (data relating to a phone call but not the content) gathered by the NSA under Section 215 of the USA PATRIOT Act is kept in a virtual NSA “lockbox” that is only accessed under certain circumstances.  According to NSA Director Keith B. Alexander, during his June 12th testimony before the Senate Committee on Appropriations, “[w]hat we create is a set of data, and we put it out here, and then only under specific times can we query that data…We won’t search that unless we have some reasonable, articulable suspicion about terrorist-related organizations.”

However, while the FBI must first obtain an order from the Foreign Intelligence Surveillance Court (FISA Court) in order to gather domestic phone records from telecommunications providers, additional FISA Court approval is not currently required for the federal government to query, or search, that data.  Per the bipartisan Congressional Research Service (NSA Surveillance Leaks: Background and Issues for Congress), a FISA Court order “is not necessary prior to searching the data already held at NSA.”  Rather, certain authorized individuals at NSA may singlehandedly approve requests to search the data and unilaterally determine whether the information that forms the basis of the query meets the standard of reasonable suspicion. 

“At a minimum, our Constitutional protections of individual privacy and due process require that the NSA should NOT serve as both custodian of such massive data sweeps and also the sole arbiter of whether that information can be queried in a particular case,” said Congressman Stephen F. Lynch.  “Requiring the government to obtain additional FISA Court approval before searching for specific domestic phone records will enhance accountability to our current intelligence collection framework while balancing the fundamental interest in individual privacy for U.S. citizens.”

In order to enhance accountability and transparency in the collection of domestic phone records, the Telephone Surveillance Accountability Act of 2013 would prohibit the searching of telephony metadata unless the Director of the FBI first submits an application to the FISA Court that includes a statement of facts demonstrating a reasonable and articulable suspicion that the basis of the search is material and specifically relevant to an authorized investigation. The FISA Court must then issue an order allowing the particular query.  Moreover, H.R. 2684 would also increase congressional oversight in this area by requiring the Director of the FBI to submit a monthly report to the House and Senate Intelligence Committees describing each search of telephony metadata made pursuant to such FISA Court orders.