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In Wake of San Bernardino, Senators Introduce New Surveillance Legislation

Created: 07 December, 2015
Updated: 18 October, 2022
2 min read

Following the suspected terrorist attack in San Bernardino, California, two senators have introduced a bill that privacy advocates could see as a means of enhancing surveillance powers that were reformed earlier this year.

The USA Freedom Act, a law that replaced some sunset sections of the Patriot Act, passed in June. The new law decreed that the National Security Agency (NSA) would no longer collect phone metadata records, but those records would remain with the telecommunications companies. If the government wanted access to those records, a court order was needed.

On Thursday, Tom Cotton, an Arkansas Republican and Angus King, a Maine independent, introduced the Private Sector Call Record Retention Act. Their legislation would require telecommunications companies holding the phone records to inform the government if they do not intend to retain those records for less than 18 months.

In a press release, Cotton explained that the legislation is designed to help the government continue to "connect the dots" of tracking terrorism suspects. The law:

"...will help preserve metadata currently stored by phone carriers by forcing them to notify the federal government if they change the amount of time they retain billing records to less than 18 months. This will give Congress and the Executive Branch an opportunity to respond before those dots are lost forever."

Cotton has long been an outspoken critic of efforts to limit the NSA's collection practices. In May, he dismissed concerns about the Patriot Act's effectiveness and constitutionality. He also blocked a Senate effort to take up surveillance reform when they were "facing expiration of a key national security tool without anything to put in its place."

Following the November 13 terrorist attacks in Paris, Cotton introduced other legislation to delay the implementation of the Freedom Act.

Passed in June, the Freedom Act did not take effect until the beginning of December, allowing the NSA to be able to continue its bulk collection of phone data. With the Freedom Act, all that is needed to requisition phone records is an order from the Foreign Intelligence Surveillance Court (FISC).

As reported on IVN last week, a court order from the FISC, or FISA Court, does not require probable cause, but only a "government need," a much lower legal threshold.

Although the Freedom Act was initially praised by privacy advocates, the version that passed was seen by many as watered down and merely a reshuffling of powers rather than a rollback. Those concerns may be refueled if the Cotton-King bill becomes viewed as another attempt to erode the reforms.