The NSA’s Bulk Surveillance is Nearing its Expiration Date
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Sometime in the next few days, Congress will tell us what it wants to do about the USA Patriot Act. It will either pass a bill that curbs the National Security Agency’s collection of Americans’ phone-calling records, extend the NSA’s current authority under the Act, or deadlock and let the relevant section of the Act expire on June 1.
It’s an important choice, the kind where we expect our representatives to earn their salaries. It’s also unearthing one of the oddest divisions in the 2016 presidential campaign—but in this case, Hillary Clinton and Ted Cruz find themselves on the same side.
What 9/11 Hath Wrought
Little seemed debatable about the USA Patriot Act when an anxious Congress passed it weeks after the 9/11 terrorist attacks. (The name is an acronym: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.”) Voting was overwhelmingly in favor: 379 to 79 in the House, 96 to 1 in the Senate.
Only after multiple reauthorizations of the Patriot Act did a guy at the National Security Agency start telling the world what the government had done with the sweeping authority this law gave it.
Among many other things, Edward Snowden’s 2013 leaks revealed that the NSA had compelled telecom carriers to turn over everybody’s calling records—including phone numbers and times of calls, but not the voice content of calls.
The NSA could then search this massive backup of our call logs for evidence of terrorist plots. But that’s not what Congress had in mind—as a primary author of the Patriot Act, Rep. James Sensenbrenner (R.-Wisc.), complained.
The NSA won approval for this hoovering up of call data in secret rulings by the Foreign Intelligence Surveillance Court, a specialized court for national-security cases.
(Yahoo Tech’s publisher, Yahoo, contested governmental demands for user data in this court, lost, and years later won the right to disclose its efforts.)
And that brings us to today: Should the NSA keep this power or not?
You Say Patriot, I Say Freedom
A bill that would have would ended the NSA’s unrestricted surveillance and made the FISA Court a less-closed, less one-sided venue died in Congress last year. But now it’s back, and it could rein in the Patriot Act.
The House passed the USA Freedom Act by a 338-to-88 margin last week—one week after the U.S. Court of Appeals for the Second Circuit ruled that the NSA’s bulk collection was out of line and that it was interpreting a key part of the Patriot Act, section 215, too generously.
(“USA Freedom,” is an acronym too: “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act.”)
In the Senate, however, the Freedom Act faces challenges.
Majority Leader Mitch McConnell (R.-Ky.) opposes the USA Freedom Act and instead wants to renew the Patriot Act.
Sens. Ron Wyden (D.-Ore.) and Rand Paul (R.-Ky.) have pledged an old-fashioned filibuster first. With that in mind, Amie Stepanovich, U.S. policy manager at Access, said: “The only possible outcomes are reform or sunset.”
If Congress can’t make a decision, Section 215 of the Patriot Act will expire on June 1. But that doesn’t thrill many opponents of NSA surveillance.
“The expiration would not stop the NSA’s bulk collection under other laws,” said Center for Democracy and Technology president Nuala O’Connor in a forwarded comment. She added that USA Freedom “would include significant new transparency requirements and other reforms.”
David Greene, civil liberties director at the Electronic Frontier Foundation, thinks the current USA Freedom bill is too weak but said in an e-mail that letting “215” expire would be “second best.”
Said Chris Riley, Mozilla’s public policy manager: “I do want more; I don’t think that there’s time left.”
Stewart Baker, the former NSA general counsel who strongly supports phone-records collection as an effective anti-terrorism measure, called a Section 215 sunset the “the worst of the plausible outcomes.” He’d rather see Congress renew it with a line approving the NSA program.
What Do the Candidates Think? You May Have To Guess
It’s difficult to find somebody in political Washington without a strong opinion on this. But not all 2016 presidential candidates are quite as clear.
Rand Paul has an “NSA” page on his site in which he declares “the phone records of law-abiding citizens are none of their damn business.” But he will vote against USA Freedom in the Senate because it’s too weak.
Vermont independent Sen. Bernie Sanders is about as clear, calling the Patriot Act’s provisions “Orwellian” and boasting that he’s never voted for it.
Clinton and Cruz each tweeted their support of USA Freedom earlier this month. Clinton, however, was yes vote for the Patriot Act as a Democratic senator for New York.
Former Arkansas Republican governor Mike Huckabee called the NSA program “an unconstitutional, criminal assault on our freedoms” in a Facebook post.
Much of the GOP contingent, however, approves of the Patriot Act and the NSA’s use of it. Sen. Marco Rubio (R.-Fl.) wrote in USA Today that “There is not a single documented case of abuse.” Among not-yet-candidates, former Florida governor Jeb Bush called it “hugely important” in February, and New Jersey governor Chris Christie declared fears over it “ridiculous” Monday.
As for what announced candidates Carly Fiorina and Ben Carlson and unannounced ones Scott Walker and Rick Perry (and former Democratic governor of Maryland Martin O’Malley) think about Congress’s choice this week, they’re not saying out loud. It could be an interesting debate when they do. But on an issue this important, we shouldn’t have to wait for that conversation.
Email Rob at [email protected]; follow him on Twitter at @robpegoraro.
