Nearly two years after NSA whistleblower Edward Snowden first revealed the U.S. government was secretly operating mass surveillance programs against the American public, including bulk collection of telephone data, privacy advocates and civil libertarians are celebrating—at least temporarily—after the U.S. Senate on Sunday failed to extend authorities for key portions of those programs before a midnight deadline.
As the Associated Press reports:
The National Security Agency lost its authority at midnight to collect Americans' phone records in bulk, after GOP Sen. Rand Paul stood in the way of extending the fiercely contested program in an extraordinary Sunday Senate session.
But that program and several other post-Sept. 11 counter-terror measures look likely to be revived in a matter of days. With no other options, Senate Majority Leader Mitch McConnell, in an about-face, reluctantly embraced a House-passed bill that would extend the anti-terror provisions, while also remaking the bulk phone collections program.
Although the lapse in the programs may be brief, intelligence officials warned that it could jeopardize Americans' safety and amount to a win for extremists. But civil liberties groups applauded as Paul, who is running for president, forced the expiration of the once-secret program made public by NSA contractor Edward Snowden, which critics say is an unconstitutional intrusion into Americans' privacy.
The Senate voted 77-17 to move ahead on the House-passed bill, the USA Freedom Act, which only last weekend fell three votes short of the 60 needed to advance in the Senate. For McConnell, it was a remarkable retreat after objecting ferociously that the House bill would make the bulk phone collections program dangerously unwieldy by requiring the government to search records maintained by phone companies.
A coalition formed by anti-surveillance organizations CREDO, Fight for the Future, and Demand Progress welcomed the "sunsetting" of the provisions, even as they warned against the possibility of Congress re-authorizing some of the same programs as soon as this week. In a joint statement, the groups said:
The expiration of key PATRIOT Act provisions – even if only temporary – is a victory for the countless civil liberties activists in every congressional district in the country who, since Edward Snowden blew the whistle on government surveillance, have fought for real reform. It demonstrates that the public can win battles in Congress that just a few years ago we were barely able to fight at all.
However, the Senate failed the American people today. Despite overwhelming evidence that Section 215 of the PATRIOT Act violates our civil liberties without making us safer, the Senate overwhelmingly bowed to pressure from surveillance agencies and voted to advance a bill that would renew their illegal and ineffective mass surveillance authorities under the PATRIOT Act.
The USA FREEDOM Act is a mass surveillance bill dressed up as a reform bill, and its passage will authorize unconstitutional surveillance practices.
"The overwhelming majority of Americans who don’t want to be indiscriminately spied on by their very own government have brought their will to bear in this fight – and have upended the inside-the-Beltway conventional wisdom that said a sunset was impossible," said David Segal, executive director of Demand Progress. "The fiercely contested battle over the PATRIOT Act and its temporary sunset demonstrate the growing power of the mass movement to reform America’s out-of-control surveillance agencies. With the expiration of Section 215 of the PATRIOT Act, each senator must now go on record and publicly decide whether to protect our civil liberties or codify unconstitutional government spying all over again through the USA FREEDOM Act."
"Sunsetting the Patriot Act is the biggest win for ending mass surveillance programs, and one that conventional DC wisdom said was impossible. We are seeing history in the making and it was because the public stood up for our rights to freedom of expression and freedom of association – and there’s no turning back now," said Tiffiniy Cheng, co-founder of Fight for the Future.
Meanwhile, the ACLU's Michael Macleod-Ball, acting director of its Washington Legislative Office, said the NSA's reliance on Section 215 to maintain the bulk collection of telephone data, which a federal court last month found to be unconstitutional, should be permanently ended and the Senate should take this new opportunity to take up truly meaningful reform legislation, not a "weak bill" like the USA FREEDOM Act.
“Sunday’s vote, at least a temporary sunset, and the debate of the last few weeks are a reflection of strong support — across the political spectrum — for meaningful and comprehensive reform of the surveillance laws," Macleod-Ball said.
As the New York Times reports:
The expiration of three key provisions of the Patriot Act means that, for now, the N.S.A. will no longer collect newly created logs of Americans’ phone calls in bulk. It also means that the F.B.I. cannot invoke the Patriot Act to obtain, for new investigations, wiretap orders that follow a suspect who changes phones, wiretap orders for a “lone wolf” terrorism suspect not linked to a group, or court orders to obtain business records relevant to an investigation.
However, the Justice Department may invoke a so-called grandfather clause to keep using those powers for investigations that had started before June 1, and there are additional workarounds investigators may use to overcome the lapse in the authorizations.
According to the Huffington Post, a vote on the House version of the USA FREEDOM Act could come this week:
Senate staffers predict that Tuesday morning is the earliest a final vote could be convened on the bill that would revive the NSA program, along with a handful of other authorities Washington’s intelligence apparatus stands to lose.
In the meantime, lawmakers from both sides of the aisle will be lobbying to attach their tweaks to the legislation. Any changes by the Senate, though, will require the bill to be kicked back to the House, further complicating its path to the president’s desk -- and the NSA’s reset of the program.