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 to pass the USA Freedom Act, which would take the bulk collection of phone records out of the hands of the NSA. Instead, it would be stored by telecoms. The legislation would force the government to obtain a court order from the Foreign Intelligence Surveillance Act any time it wishes to access such records from telecoms and would limit the access to records that are relevant to a national security investigation. It looks likely that the bill will pass sometime this week.
Last week, the senate failed to pass the same bill, but tonight agreed to scrap that vote and try again. Senator Rand Paul stymied that effort, saying in a speech that the bill still didn’t go far enough to curb surveillance. Senate Majority Leader Mitch McConnell, who had originally opposed the bill, announced that it was “now the only realistic way forward” and urged Republicans to vote yes with him. McConnell mustered enough votes to advance the bill procedurally, meaning debate is over and the bill can now be voted on quickly later. The Senate will meet again tomorrow at noon ET, likely to take up the vote again. But by that time, the relevant section of the Patriot Act will have expired.
“Congress should take advantage of this sunset to pass far reaching surveillance reform, instead of the weak bill currently under consideration,” said Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office.
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 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 6th 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 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 in this way.
The Privacy and Civil Liberties Oversight Board convened by President Obama in the wake of the Snowden revelations recommended that the 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 to draft a law authorizing it, 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 has been rocky. Last November, Democratic Senate lawmakers hoped to advance their version 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 last week during a second attempt to move the bill forward.
The bill’s initial failure last November was due in part to opposition from Mitch McConnell and others who oppose the USA Freedom Act and instead wanted 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—if they 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 6th 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, lawmakers were left with the choice of either revising Section 215 so that it does authorize bulk collection or re-authorizing it as is and 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, but kill the bulk collection of phone records. Under the legislation, the government would have six months of transition to close down its collection program.
McConnell 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. But opposition was strong, 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 also obtain access to 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 they weren’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 Rand Paul (R-Kentucky) 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 voice vote earlier in the evening agreeing to take up 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.