The Surveillance Debate Shifts As Patriot Act Nears Expiration

With the NSA’s dragnet call program already winding down, the Senate will reconvene in a rare Sunday vote to get surveillance powers back online.

Senate Majority Leader Mitch McConnell (R-KY) Alex Wong / Getty Images

Following an unusual Friday-night session of Congress ahead of the Memorial Day weekend, Senators will reconvene in another rare holiday-recess vote on May 31 in the hopes of salvaging legislation that would end the NSA's bulk call data collection program and rein in its powers of surveillance.

The USA Freedom Act, passed in the House earlier this month by a 338–88 vote, and backed by the Obama administration, would reauthorize surveillance powers under the Patriot Act while ending a National Security Agency phone data collection program recently ruled illegal by a federal appeals court. While the bill enjoyed wide, bipartisan support in the House, two Senate factions opposed the legislation. It failed to proceed in a 57–42 vote. When the White House declined to submit a reauthorization request for the controversial program, the NSA began winding it down.

The question for lawmakers now: What happens next?

Without the 60 votes needed to advance in the Senate, failure to pass USA Freedom will cause crucial parts of the Patriot Act to expire after May 31. One of these provisions, Section 215, served as the secret legal justification by the NSA to eavesdrop on American citizens. While libertarian-minded senators like Rand Paul view the sunset of the Patriot Act as a great victory for privacy rights and a necessary blow against the surveillance state, security hawks like Majority Leader Mitch McConnell see an unacceptable weakening of vital law enforcement tools.

Between these two perspectives lies the coalition backing USA Freedom. Rep. Adam Schiff, ranking member of the House Intelligence Committee, told BuzzFeed News that USA Freedom was the product of a hard, negotiated compromise, drawing on a broad sector of support. He believes that any legislation proposed by the Senate that would undermine the privacy protections of USA Freedom will likely be rejected by the House.

Some lawmakers, like Sen. Ron Wyden, would like to see a more comprehensive review of the government's surveillance power but still support passage of USA Freedom. "If we were to end mass surveillance under the Patriot Act, that would be a worthwhile step even if it doesn't go nearly far enough," Keith Chu, a spokesperson for Sen. Wyden, told BuzzFeed News.

Rep. Ted Lieu, one of the 88 representatives in the House who voted against USA Freedom, takes a more skeptical position. "The bottom line is that Section 215 has been used by the NSA and other federal agencies for years as the basis for open-ended programs that have violated the constitutional rights of Americans and jeopardized the public's trust in our government," he told BuzzFeed News.

Rep. Lieu acknowledged the merits of USA Freedom, but he cited overly broad data collection and concerns of information being retained that isn't relevant to criminal investigations as issues with the bill. "We can't truly curtail the government's expansive surveillance programs without comprehensive reform that addresses a number of statues, but that may first require opposing inadequate proposals and allowing the Patriot Act provisions to expire completely," he told BuzzFeed News.

Privacy advocates have argued that USA Freedom's attempts to limit government abuse are too modest, pointing to a Justice Department report released last week that "did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders." Bolstered too by the appeals court opinion, critics maintain that the dragnet surveillance apparatus spawned by the Patriot Act is both ineffective and illegal.

In addition to USA Freedom being reconsidered by the Senate on Sunday, Majority Leader McConnell is expected to introduce short-term extensions of the Patriot Act. But just as these proposals were blocked last week, last-minute efforts for a clean reauthorization of surveillance powers are expected to be stonewalled come Sunday.

Complicating matters further, even if a Senate extension or some altered version of USA Freedom is allowed to proceed, the House doesn't return from Memorial Day recess until June 1, meaning the provisions would necessarily expire. The only workable solution to prevent the expiration of these measures would be for the Senate to pass USA Freedom.

"Because the Senate failed to complete its work last Saturday, passage of the USA Freedom Act remains the only viable legislative option that will bring real reform and ensure no lapse in intelligence authorities." wrote House Judiciary Committee Chair Bob Goodlatte and Senate Judiciary Committee Ranking Member Patrick Leahy in a statement on Tuesday.

In a bipartisan joint statement released Saturday by House leaders, representatives blamed the Senate for the possibility of a coming security lapse. "The Senate has failed to make the important reforms necessary, jeopardizing Americans' civil liberties and our national security," wrote Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler.

Harley Geiger, senior counsel for the Center for Democracy and Technology, told BuzzFeed News, "the question is how long Section 215 sunsets." The Senate and then the House may renew Section 215 after only a few hours, he said. But in the absence of "major reform that ends NSA bulk collection and provides strong transparency requirements," the CDT prefers the Patriot Act to sunset.

If Sunday's last-ditch attempt fails, it's unclear which political faction and surveillance policy will ultimately prevail. In a new status quo where surveillance powers are narrow and limited, the Patriot Act may lack the support to be re-enacted as opposed to merely extended. But the counterterror war drum might grow louder still. On Sunday, it may come down to three senators changing their minds.

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