In a rare Sunday session, the Senate voted 77 to 17 yesterday to advance the USA Freedom Act, a bill that hopes to rein in, albeit partially, the NSA’s surveillance programs that touch American citizens.
The procedural vote’s success will likely lead to a mid-week vote on the bill itself. While the Senate has moved forward in the work of reauthorizing parts of law that the NSA claims are key to national security, certain programs will lapse for several days until the new bill is enacted.
Provisions of the Patriot Act, a piece of law that helps undergird much of the NSA’s data collection efforts, expired at midnight last night. As TechCrunch noted after the vote, Section 215 of the Patriot Act is among the sunsetting clauses. Section 215 is infamous for its role in allowing the NSA to collect metadata on nearly all American phone calls. The NSA saves and stores the information about your calls — who you called, what time, and for how long — but not the contents of the call itself.
The program, and its forced-partner Verizon, was among the first programs unveiled by the leaks of former-NSA contractor Edward Snowden.
The Lapse
For the first time since shortly after the 9/11 terrorist attacks, American intelligence agencies are not collecting Americans’ call records. But what that means depends on your politics.
In a call with reporters this afternoon, Cindy Cohn, Electronic Frontier Foundation executive director, said it means “nothing.” She referenced several review groups commissioned by the government in the wake of the Snowden revelations that found the bulk phone record collection program had not thwarted terrroist attacks. Additionally several judicial bodies, including recently an appellate court, have questioned the legality of these programs.
Similarly, Rand Paul, the most vocal opponent of surveillance in the Senate, said the lapse, “will not relinquish functions necessary for protecting national security.”
But on the other extreme, many hawkish lawmakers say allowing the program to expire has jeopardized national security. The lapse is a materialization of the worst fears of some in the intelligence community.
“And this is something that we can’t afford to do right now, because if you look at the horrific terrorist attacks and violence that is being perpetrated around the globe, we need to keep our country safe,” said CIA director John Brennan on CBS Face The Nation last night. “And our oceans are not keeping us safe the way they did a century ago.”
Even with the programs expiring, the government has other ways to collect data. A common misconception has been that the entire Patriot Act is expiring, but really only several provisions of the law are. The government also has several other laws it uses to authorize collection of American communications, including FISA Section 702 and Executive Order 12333.
The New York Times has reported there are several Patriot Act grandfather clauses that could allow for the continued collection of data in cases that began before June 1. It’s unclear whether or not the Obama administration is using that clause to collect data. The administration did commit to not seek reauthorization from the program through the secret FISA Court.
During this morning’s call, the EFF said the government should be more transparent about how it is surveilling Americans, even during this lapse.
“Americans shouldn’t have to read tea leaves to figure out what their rights are,” Cohn said.
The Response To The Sunset
Reaction among tech stocks on the public markets has been muted. Shares of the largest tech firms have mostly ticked higher today, matching broader market gains. That fact implies one of several potential scenarios: Investors expected the Senate to advance the bill, and thus priced in any potential upside in their prior analysis, or, that investors don’t care a whit about the vote.
Given the activity of tech firms advocating in favor of the bill, the latter case seems to be less likely; if tech firms care about the vote — and they do — then their owners presumably do, as well. Therefore, the market impact of the vote indicates that investors anticipated Congress’ ability to remove doubt from potential customers’ buying patterns.
The gist is simple: If American technology companies can’t convince overseas buyers that the NSA doesn’t have unfettered access to their saved information, the national tech industry can’t compete. The USA Freedom Act, if it does become law, could spark a reform process that might lessen those fears. It is important to note that the Freedom Act does little to protect foreign citizens from American surveillance, but advocates believe it is a baby step toward achieving that goal.
Freedom Act Likely To Pass This Week
A bill that has split reformers and hawks alike will likely pass following an amendment process. Currently it does not seem as if any of the amendments will receive enough support in the Senate, and even if they do, the House is unlikely to support a bill that is drastically changed from the one it passed with overwhelming support.
Senator Mitch McConnell is introducing a string of amendments that would weaken the bill. One would allow the government to continue collecting and storing Americans’ metadata for a year before transferring those responsibilities to the phone companies. But these aggressive amendments do not have support from other senators. A bipartisan group of lawmakers released a statement opposing any amendments Monday afternoon.
However McConnell is unlikely to allow votes on any of the amendments that would strengthen the bill, such as those introduced by Paul. Although it’s unfortunate that the bill will not be improved, at least it seems it won’t be weakened drastically.
Next Steps
This week’s vote will likely mark the first time lawmakers have reined in the surveillance of the National Security Agency since 9/11. Advocates hope that this means a reversal of the pendulum. Next year as parts of the FISA Act are set to expire, the EFF plans to begin an aggressive campaign to reform Section 702.
Section 702 allows for the collection of the content of communications as long as one party is overseas, and a report last summer found that more than half of the communications collected under the act did not belong to intended targets.
Advocates and lawmakers also expect the tension between privacy and national security to continue to play out as they consider encryption and the challenges advanced encryption techniques pose to law enforcement.
Even though this week’s action seems like the end of a two-year debate over the phone records program, it really may be the first step toward reforming national surveillance since September 11.