With the fate of the USA Patriot Act still hanging in the balance late afternoon Friday—and lawmakers eager to leave Washington, D.C., for Memorial Day barbecues and campaign stops in their home states—the chance to see the sun go down on the controversial spying bill is still on the table.
The debate over the Patriot Act is centered around one of its key provisions, Section 215, which is set to expire on June 1 absent congressional action. The U.S. National Security Agency (NSA) previously relied on Section 215 to justify its mass phone data collection operation, but its expiration would force an end to that program.
"The nationwide sunset vigils have sent a signal to Washington: It's time we closed this chapter on mass surveillance and restored everyone's rights to connect and communicate in private."
—Sandra Fulton, Free Press Action Fund
With that "sunset" approaching, lawmakers have the chance to reform the Patriot Act, end it altogether, or pass a clean re-authorization that renews all the provisions set to expire in mere days.
Senate Majority Leader Mitch McConnell (R-Ky.) is the most outspoken supporter of a clean re-authorization, arguing that the Patriot Act in its current form is a crucial tool in the so-called "War on Terror." FBI director James Comey also said this week that it would be a "big problem" to lose the authority that the law bestows on the intelligence agencies.
Adding to the urgency is the Obama administration's warning that Congress only has until Friday to act on the law, because the government will need time to scale down its phone data program if it is not re-authorized. The House of Representatives has already left for the Memorial Day weekend.
The White House, along with the U.S. House, supports reform legislation called the USA Freedom Act, and warned that "there is no Plan B, these are authorities Congress must legislate."
Should the Senate fail to pass the reform bill, said White House press secretary Josh Earnest on Friday, there is nothing the president can do to stop the Patriot Act provisions from lapsing.
Of course, that would be just fine with privacy activists and advocacy groups who oppose intrusive government surveillance. At protests held in dozens of cities on Thursday, demonstrators called on Congress to oppose any re-authorization of the Patriot Act and instead let its spying provisions sunset as scheduled on June 1.
"It's time we came together and let the sun go down on this dark age of government surveillance," said Fight for the Future campaign director Evan Greer. "Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all."
Free Press Action Fund government relations manager Sandra Fulton added, "The nationwide sunset vigils have sent a signal to Washington: It's time we closed this chapter on mass surveillance and restored everyone's rights to connect and communicate in private."
However, The Hill reported Friday that "momentum appeared to be on the side of reformers, whose hopes were buoyed by the near certainty that the Senate will either need to pass [the House version of] the USA Freedom Act, or allow three parts of the post-9/11 law to sunset."
The report went on to say the USA Freedom Act "has the backing of the majority of the Senate—including all Democrats—but it remains unclear whether it has the 60 votes necessary to overcome procedural hurdles during what increasingly looks like a rare Memorial Day weekend session."
The USA Freedom Act passed the House on May 14 with an overwhelming 338-88 vote. But according to advocacy groups like the Electronic Frontier Foundation, the USA Freedom Act is a "small step instead of a giant leap," particularly in comparison with previous iterations of the bill, introduced in 2013 and 2014, which offered stronger reforms but failed to progress through Congress.
The Act grants a five-year extension to Section 215.
After the bill passed the House, Tiffiniy Cheng, co-founder of Fight for the Future, warned that the USA Freedom Act would actually "expand the scope of surveillance" by the NSA and others.
"This is a fake privacy bill," Cheng said. "Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as 'USA Freedom.' This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems."
Opposition to the Patriot Act has grown steadily since whistleblower Edward Snowden in 2013 revealed Section 215's role in the NSA spying program. The call to let the provision expire only grew after a federal appeals court ruled earlier this month that the agency's phone surveillance operation is illegal. And as Mike Masnick at Techdirt points out, a Justice Department investigation into the FBI's use of Section 215, released Thursday, found that the provision has never been particularly useful in anti-terrorism efforts.