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    Washington Post: Senate bill would validate NSA’s harvesting of phone, e-mail records, privacy advocates say

    The Washington Post reports that privacy advocates are sharply criticizing a bill, the FISA Improvements Act (pdf), from Sen. Dianne Feinstein (D-Calif.), head of the Senate Intelligence Committee, concerning surveillance by the National Security Agency:

    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 e-mail records.The bill to amend the Foreign Intelligence Surveillance Act (FISA), which advanced out of the Senate Intelligence Committee, would codify limits that a special court has placed on the 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 e-mail records of millions of Americans, the advocates say. […]

    Committee Chairman Dianne Feinstein (D-Calif.), who cosponsored the 45-page bill with Vice Chairman Saxby Chambliss (R-Ga.), has said the phone records program is legal and that though they want to place some limits on it, she will do everything she 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 e-mail metadata. That includes the “to” and “from” lines, date and time stamp, and file size. “We do not understand business records to include Internet metadata,” said a committee aide, who was not permitted to speak on the record. […]

    Several former senior Justice Department officials, who were not permitted by their current employers to speak on the record, said that e-mail metadata are clearly a business record. “It’s a classic business record,” one former official said. “It’s a record that’s created by the company for the purpose of providing a service. It’s not created at the request of law enforcement or the government.” […]

    [Sen. Ron Wyden (D-Ore.)] and privacy advocates are also concerned that the bill would place in statute authority for the NSA to search without a warrant for Americans’ e-mail and phone call content collected under a separate FISA surveillance program intended to target foreigners overseas. That is what Wyden has called a “backdoor search loophole.” […]

    A competing version of reform legislation is pending in Congress. The USA Freedom Act, cosponsored by Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, and Rep. F. James Sensenbrenner Jr. (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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