Key provisions of the Patriot Act used by the National Security Agency to justify mass data collection programs have expired but the debate over government surveillance is far from over.
The intensifying dispute over American privacy rights versus national security efforts returns to the Senate floor as early as Monday afternoon as the Senate takes up a bill that both critics and supporters of surveillance reform complain is too weak.
The USA Freedom Act seeks to curtail the National Security Agency's bulk phone records data collection program and limit searches to specific selections terms. It would introduce more transparency over the manner in which the government pursues individuals and groups suspected of terrorism-related activities and put new restrictions on data use by the NSA.
According to the bill, the government would not be allowed to store phone records and will only be permitted to request the data from telephone providers, the entities that will be responsible for holding the data. The bill is designed to allow the NSA to conduct its surveillance programs but under more restrictive controls than before.
Security hawks and supporters of surveillance reform in general have welcomed the bill, but the legislation still has many critics. Privacy advocacy groups such as the American Civil Liberties Union worry that it still gives too much leeway to US spy agencies to conduct mass surveillance. Opponents see it as dangerously weakening the NSA’s ability to conduct antiterror operations.
The House of Representatives approved USA Freedom Act in a resounding bipartisan 338-88 vote in May. In a rare Sunday night session the Senate voted 77-17 to advance the bill after failing to do so just a week ago. The change in heart came too late to prevent sections of the Patriot Act from expiring at 12:01 a.m. Monday morning.
Earlier, presidential contender Sen. Rand Paul (R) of Kentucky, a staunch opponent of the bulk collection program, stood in the way of efforts by fellow Kentucky senator and Majority Leader Sen. Mitch McConnell (R) who had sought to reauthorize the now-expired provisions. Senator Paul went as far as an 11-hour filibuster last week.
The three parts that have expired – at least for the moment – comprise Section 215 of the Patriot Act. The government has cited Section 215 as its authority to collect phone data in bulk; other parts of the section pertain to "roving surveillance" and "lone-wolf" terrorism suspects.
Senator McConnell and several others including Senate Intelligence Committee Chairman Richard Burr (R) of North Carolina and Marco Rubio (R) of Florida have called the provisions vital to the NSA’s continued ability to conduct antiterror investigations. They had wanted the provisions reauthorized to at least 2020 and had been fighting to reinstate it.
Section 215 was put in place following 9/11 and has been reauthorized with little controversy until now. But former NSA contractor Edward Snowden’s revelations about the spy agency's domestic data collection programs conducted under the aegis of the Patriot Act have drastically changed public opinion and fueled calls for surveillance reforms.
Paul and a growing number of others have said the provisions represent a dangerous overreach of government powers and need to be terminated.
The US Court of Appeals for the Second Circuit boosted that position May 7 when it ruled that the NSA’s bulk phone metadata collection program is not authorized under Section 215.
Monday’s expiration of the Patriot Act provisions means that the NSA at least temporarily does not have the authority to collect phone records and other business data in bulk from phone companies. Neither does it have the authority to place roving wiretaps or pursue lone wolf suspects.
All three items will be on the agenda when the Senate reconvenes Monday afternoon to pick up the Freedom Act.
The big question now is whether McConnell and others who wanted clean reauthorization of the Patriot Act will let USA Freedom pass without major amendments. To them, the bill represents a serious weakening of provisions that are critical to national security interests. It is quite possible that the lawmakers will try to introduce language in the bill that in their view will restore some of the capabilities that expired Monday.
If such amendments were to be made, the bill would likely need to go back to the House for reapproval further delaying the passage of provisions that are key to the NSA’s ability to conduct antiterror surveillance operations.
Any Senate amendments that significantly modify the bill would also run into problems with privacy and rights advocacy groups already concerned that the bill does not go far enough in protecting privacy interests.
“We will see a final vote on the USA Freedom Act with poison pill amendments that will try to weaken the bill," says Mark Jaycox, legislative analyst with the Electronic Frontier Foundation. “The Senate must hold strong and ensure that the USA Freedom Act as passed by the House is the version they vote on,” he says.
In his weekly address, President Obama called on Senate leaders to pass the bill warning that further delay would put the nation at risk.
“This is a matter of national security,” Mr. Obama had noted before the Senate’s Sunday night session. "Terrorists like Al Qaeda and ISIL aren’t suddenly going to stop plotting against us at midnight tomorrow. And we shouldn’t surrender the tools that help keep us safe. It would be irresponsible. It would be reckless. And we shouldn’t allow it to happen.”