One of the NSA’s most controversial surveillance programs ended at least temporarily Sunday, after US senators failed to pass a bill that would have reformed Section 215 of the Patriot Act, which is set to expire at midnight.
In a contentious Sunday session, US senators tried unsuccessfully to pass the USA Freedom Act. They agreed to scrap it for tonight, but cleared the way for it to be taken up again tomorrow or later this week for a vote that could pass it. The bill would end the NSA's bulk collection of phone records for good by having telecoms store the records instead. The legislation would still allow the government to access the records, by obtaining a court order from the Foreign Intelligence Surveillance Act any time it wishes to view them, but would limit this access to records that are relevant to a national security investigation.
The bulk collection program will be forced to expire nonetheless tonight---at least temporarily---when Section 215 expires. This is the law the government has used until now to provide legal justification for its bulk collection of phone records. Some senators had hoped to re-authorize Section 215 before tonight to keep the bulk collection program alive, but failed at that as well.
With regard to the reform legislation, the USA Freedom Act, the Senate had attempted to push it forward last week as well, but Senator Rand Paul (R-Kentucky) helped stymy its passage, saying in a speech on the Senate floor that the bill didn't go far enough to curb surveillance. In the meantime, Senate Majority Leader Mitch McConnell (R-Kentucky), who had originally opposed this bill and supported re-authorization of Section 215 instead, changed course on Sunday after being pressured by the White House and the intelligence community, and agreed that the USA Freedom Act was "now the only realistic way forward" in order to preserve the government's ability to access phone records in some form. He urged other Republicans to vote yes with him on the bill and managed to muster enough votes to at least advance the bill procedurally on Sunday, putting an end to debate about it so that the Senate can now vote on its passage quickly. Senators will next convene tomorrow at noon ET, at which point they will likely take up the bill for a vote. Before they can do that, however, Section 215 of the Patriot Act will sunset.
Civil liberties groups like the Electronic Frontier Foundation and the American Civil Liberties Union are happy for Section 215's expiration but are mixed in their support of the USA Freedom Act. While they're happy that it would put an end to the government's collection of phone records for good, they believe like Senator Paul that the bill contains some loopholes and doesn't go far enough in curbing the government's surveillance.
"Congress should take advantage of this sunset to pass far-reaching surveillance reform, instead of the weak bill currently under consideration,” Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office, said about the USA Freedom Act.
The bulk phone records collection program was first uncovered by USA Today in 2006, although US telecoms denied at the time that they were handing over the records of customers to the government. But in 2013 a document leaked by NSA whistleblower Edward Snowden confirmed that the government had been collecting all phone detail records from certain US telecoms for years, including records for calls that are wholly domestic---meaning both parties are located in the US. The records are collected even though the vast majority of people involved in the calls are not suspected of ties to terrorism or criminal activity. The collection doesn't involve the content of calls, but instead involves so-called metadata---the phone numbers on both sides of a call and the date and duration of the call.
Civil liberties groups have challenged the program on Fourth Amendment grounds, and although one federal judge called it “likely unconstitutional,” a three-judge panel in the 2nd Circuit Court of Appeals did not go that far in its recent judgement about the program. The panel did, however, rule that the program is currently illegal under US law, since the legislation the government had been using to justify it---Section 215 of the USA Patriot Act---does not in fact allow for the mass collection of records.
The Privacy and Civil Liberties Oversight Board convened by President Obama in the wake of the Snowden revelations also found Section 215 deficient in this regard and recommended that the collection program be overhauled so that the records would be retained by the telecoms while still being accessible to the NSA with a court order. To do this, however, lawmakers needed a new law authorizing this, hence the USA Freedom Act.
Although the House passed its version of the bill by a landslide earlier this month, its path through the Senate was rocky. Last November, Democratic Senate lawmakers hoped to advance their version of it during an end-of-year lame-duck session before they lost their majority position to newly elected Republicans who would be taking office in January. But they failed by just two votes to obtain the 60 votes necessary to close down a debate on amendments to the bill and advance the legislation to the Senate floor. That outcome was repeated two weeks ago during a second attempt to move the bill forward.
The bill's initial failure last November was due in part to opposition from McConnell and others who wanted instead to re-authorize Section 215 of the Patriot Act, which the government was still maintaining at the time gave it legal authorization to conduct bulk collection of phone records. Section 215 authorizes the government to obtain business records---including medical, credit card and financial records---that are relevant to an FBI investigation. But it, along with two other sections of the Patriot Act, are set to expire after midnight tonight. This means the bulk collection would have to stop without re-authorization, but so would the collection of other records allowed by Section 215.
The recent 2nd Circuit Court of Appeals ruling made a straight re-authorization difficult, however. Because the three-judge appellate panel ruled that Section 215 as written cannot be used to legally justify the mass collection of US phone records, McConnell and supporters were left with the choice of either revising Section 215 so that it does authorize bulk collection or re-authorizing it as is and effectively leaving the government with no legal coverage for its bulk collection program.
The USA Freedom Act was proffered as a compromise---it would essentially re-authorize Section 215 so that the government could continue to obtain business records relevant to an investigation, with a court order, but kill the bulk-collection of phone records. Under the legislation, the government would have six months to close down its collection program.
McConnell, however, failed last week to get the Patriot Act re-authorized, so he tried to get a temporary extension for the expiring sections to buy time until lawmakers could decide on a permanent solution. Opposition was strong, however, particularly after a report released last week by the Justice Department’s own inspector general office revealed that between 2007 and 2009, the government had been using Section 215 to obtain, in addition to bulk phone records, a large collections of electronic communication transactional information---which likely refers to the "to" and "from" lines of emails and text and instant messages, as well as web addresses visited and internet protocol addresses.
The report also called into question the efficacy of the collection programs. The inspectors found that neither the call records collection program---nor any other bulk surveillance conducted under Section 215---had produced significant intelligence or intelligence that the government wasn't able to obtain through other means.
“[T]he agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders, but told us that the material produced pursuant to Section 215 orders was valuable in that it was used to support other investigative requests, develop investigative leads, and corroborate other information,” the inspectors stated.
This provided more fodder for those opposed to the Patriot Act. Senators Ron Wyden (D-Oregon) and Paul staged a kind of filibuster last week to prevent any re-authorizion or extension of the Patriot Act. With that failing as well as the USA Freedom Act, McConnell convened the special session today, following a week-long holiday recess, to revisit them. The Senate was looking at two motions today---one to advance the USA Freedom Act and the other to pass an extension for the sections of the Patriot Act that are set to expire.
The White House was clear on what it wanted senators to do. During his weekly address to the nation on Saturday, President Obama called on Americans to "join me in speaking with one voice to the Senate. Put the politics aside. Put our national security first. Pass the USA Freedom Act—now."
Though the senators didn't heed those words tonight, it appears likely that eventually the bill will pass. The procedural vote today agreeing to advance the reform bill passed by 77-17, showing there is likely sufficient support to pass the law soon and put an end to the bulk collection program for good.
