Last night, two incredible things happened. First, three surveillance provisions in the USA PATRIOT Act expired. For the first time since September 11, 2001, the United States Congress failed to renew these provisions and, accordingly, restricted the authority of U.S. surveillance agencies.
When it was passed, the USA PATRIOT Act included expiration dates for certain authorities in order to ensure that lawmakers would continually determine if they were still necessary, and what additional privacy protections could be added. However, Congress has not once actually modified these authorities to include more protections.
While there is certainly continued support for these surveillance authorities in both the House and the Senate, there is no longer enough support to continue them without substantive reform. This clearly demonstrates a shift in opinion about surveillance in the United States, and, for some, a vindication of Edward Snowden as a whistleblower.
Allowing these authorities to expire is a good thing, but not good enough. Unfortunately, the government has other authorities at its disposal. Because Congress did not specifically limit surveillance, the same programs could be continued under different legal authority. For example, while Section 215 of the USA PATRIOT Act (in its current form) has been used to justify the collection of bulk telephone records, Section 214 — which does not have a sunset — has also been used to collect records in bulk and could be used for the telephone metadata program. This “shell game” with legal authorities will make it harder to monitor government surveillance in the future.
National Security Letter (NSLs) authorities are also permanent. These have been used by the Federal Bureau of Investigation (FBI) to seize records in bulk without any court oversight. NSLs frequently come with a “gag order,” which means we don’t know when they are being used.
All this means that more must be done. Allowing some authorities to expire is a step in the right direction, but Congress must also proactively rein in all of the other surveillance authorities in order for the impact to be meaningful.
That leads to the second incredible thing that happened last night. The United States Senate voted 77 – 17 to take up consideration of the USA FREEDOM Act, legislation that will ban bulk collection under certain authorities. (Read our press statement here.)
We have previously written about the USA FREEDOM Act here and here. The bill specifically prevents bulk collection under Section 215, Section 214, and NSLs. It also requires the government to report on the use of its authorities,allows companies to provide transparency to their customers about surveillance, and gives the public a window into the deliberations of the secretive FISA Court which approves the government’s request for surveillance. The USA FREEDOM Act is far from perfect (we’ve written about how it could be improved here), but it takes a step in the right direction — a step beyond simply allowing certain authorities to expire.
The Majority Leader of the United States Senate, Senator Mitch McConnell, who controls the Senate’s schedule, does not support the USA FREEDOM Act. He has allowed the bill to move forward because it is the only alternative to permanent sunset of certain surveillance authorities. However, without unanimous consent, the Senate moves very slowly. Senator Rand Paul of Kentucky refused to provide consent last night, so the vote won’t happen until Tuesday at the earliest.
Unfortunately, because Senator Paul did not allow the Senate to vote on final passage before the deadline last night, the USA FREEDOM Act is now subject to several amendments drafted by the Majority Leader. Any of these amendments, if adopted, would weaken the bill and provide fewer reforms and protections. Ironically, by speaking on the bill’s shortcomings, Senator Paul has opened a door that could allow it to be weakened.
Access vociferously opposes all five of the McConnell amendments, but continues to support the USA FREEDOM Act as it is currently drafted and has passed in the House. We’ll keep you updated, but if you’d like to hear about developments as they happen, we encourage you to follow us on Twitter and Facebook.
Update: On June 2, 2015, The U.S. Senate passed the USA FREEDOM Act without amendments and it was signed into law by President Obama. See Access’ statement here.