With the government’s intelligence community temporarily stripped of its once extraordinary authority to spy on Americans’ phone calls and messages, the Senate has been left with little choice this week but to follow the lead of the House and make fundamental changes to the Patriot Act.
Many conservatives, liberals and libertarians have endorsed elements of the proposed reform legislation –particularly the fundamental changes to procedures for bulk collection of telephone metadata. But some complained this week that the GOP-controlled Congress has unnecessarily created uncertainty and concern about national security through its inept handling of the legislation, allowing the issue to drag on for months.
“If you believe that bulk collection is a great evil, then it follows that a bill that substantially curtails that cannot be dismissed as inconsequential,” said Benjamin Wittes, a senior fellow at the Brookings Institution. “But I’m just frankly flabbergasted by legislative incompetence here.”
“What did we get in exchange for six additional months of brinksmanship?” he said in an interview yesterday. “We’ve added six months of uncertainty both to the civil liberties world and to the intelligence community operator world in order to end up more or less back where we were at the end of the Democratic Senate last year.”
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Key sections of the Patriot Act–first enacted in the wake of the Sept. 11, 2001, attacks on New York and Washington–expired shortly after midnight Sunday after Sen. Rand Paul (R-KY), a presidential candidate, blocked Senate action to extend them even temporarily in a humiliating moment for GOP leaders.
The most important provision–Section 215–had allowed the National Security Agency to collect and analyze virtually all U.S. phone records without the knowledge of the callers that is until former NSA contractor Edward Snowden blew the whistle on those activities beginning in June 2013. That section of the law also permitted court orders requiring businesses to turn over records that federal investigators deemed relevant to a national security investigation.
While such activity was readily condoned by the public and lawmakers throughout the Bush administration, civil libertarians and strict constitutional constructionists more recently began agitating for change and relief from Big Brother government snooping. Early last month, the federal Second Circuit Court of Appeals ruled against the legality of government bulk data collection under Section 215.
“The point we want to make is, we can still catch terrorists using the Constitution,” Paul declared on the Senate floor Sunday evening after thwarting Majority Leader Mitch McConnell’s desperate effort to keep the Patriot Act provisions alive.
Related: Patriot Act: Jeb Bush, Pataki, and CIA Chief All Attack Rand Paul
McConnell for months had pressed hard to renew the Patriot Act with some small changes, convinced that it was essential to protect the country from ever-mounting threats from abroad. But he has been forced to shift course.
McConnell is now driving the Senate towards approving a version of the so-called USA Freedom Act that was passed overwhelmingly in the House last month. The reform legislation would strip the NSA of its unfettered telephone data collection authority and require the agency to obtain warrants from a special intelligence surveillance court before tapping into bulk metadata kept by the phone companies.
The Senate voted 77-17 on Sunday evening to move toward passage of the USA Freedom Act, albeit with a number of amendments being sought by Republican and Democratic lawmakers. Final action could come within the next few days.
Related: Rand Paul Will Shut Down Domestic Spying—If Only for a Moment
The USA Freedom Act makes numerous significant changes to the government’s data collection authority under the Patriot Act, though it does not go nearly as far as some civil liberties advocates would like.
The most widely advertised change is to the government’s surveillance authority is that under the USA Freedom Act, the National Security Agency will no longer be empowered to collect and story telephone records en masse. The agency will have to make relatively “narrow” requests for the data based on “specific selection terms.”
However, a demand for such data, so long as it is backed by an order from the Foreign Intelligence Surveillance Court, would grant the government ongoing access to the data related to the targeted individual or group, as well as data two “hops” away from them. (That means information about the individual’s contacts, and those contacts’ contacts.) It also puts additional restrictions on the information that the government can demand in the second “hop” and requires “prompt destruction” of data not relevant to the investigation.
Related: White House: no 'Plan B' if U.S. Congress fails to act on Patriot Act
The bill also provides legal protections for businesses, that hand over data to the government, such as phone companies, and provides for potential compensation for the effort required to do so.
Under the law, the FISA courts are required to approve specific intelligence collection, and those courts get an overhaul, too. For example, the Freedom Act creates a process for naming amici curiae, or friends of the court, who among other things, can argue against the government’s requests on the grounds of civil liberties and potential violations of individual rights. It also allows for appellate court review of FISA court decisions.
However, while these seem like significant changes, they are actually far narrower in scope than civil liberties advocates would like.
The bill also makes changes to the controversial National Security Letter program, under which law enforcement can demand information from businesses about their customers as long as they specify that the purpose of the collection is to aid in an investigation of terrorist activities. The law also blocks the recipients of the letters from discussing them publicly.
Related: Bill to extend 'Patriot Act' surveillance programs blocked in Senate
The Freedom Act would restrict the circumstances under which National Security Letters could be issued, again requiring specific selection criteria, and would offer businesses that receive them the possibility of judicial review of the nondisclosure requirement.
Another section of the bill prevents the unrestricted use of “pen registers” or “trap and trace” devices, which keep a record of outgoing and incoming calls, respectively. As with the changes to the bulk collection rules, the use of a pen register or trap and trace device would require a submission to the court seeking permission and supplying specific selection terms.
Other changes include tweaks to the government’s authority under Section 702 of the Patriot Act, which covers collection of data related to non-U.S. persons, and greater disclosure requirements forcing the government to turn over more data about the general scope of its surveillance programs.
McConnell has already submitted a number of amendments to the bill – some non-controversial but others almost certain to draw strong opposition both in the Senate and House. One provision would give the NSA six more months to phase out its bulk phone record collection program, while another would undermine the bill’s efforts to achieve more transparency, including making public any significant opinions from the secretive FISA court.
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