Congress loves testing deadlines. But that habit of waiting until the last minute could hand privacy advocates a win over the NSA.
The National Security Agency’s controversial phone metadata program under the Patriot Act will officially sunset at midnight June 1. Last week, the U.S. House of Representatives overwhelmingly passed a revised bill of the USA Freedom Act, which would put limits on intelligence agencies’ mass collection of phone records.
“At this point McConnell has announced that there won’t be any votes on NSA issues until Saturday,” said Jake Laperruque, privacy and security fellow at the Center for Democracy and Technology. “At this point, almost certainly the [bill] will either pass or the program will sunset, and that’s a huge win for privacy.”
But a looming Memorial Day recess and vocal opposition to temporarily extending the program from both chambers nearly dashes the hope Sen. Mitch McConnell (R-KY) had to reauthorize Section 215 and keep the program alive.
“There’s really no chance of getting a re-authorization of the program by the deadline,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s national security program. “The one exception to that is USA Freedom.”
The Senate has tentatively planned to vote on the bill and McConnell’s two-month extension for the program Saturday. But at least a temporary shutdown of the NSA’s program could be imminent with the House scheduled to recess Thursday and the Justice Department already announced it will wind down the NSA’s program Friday to decommission it by June 1.
“It’s a bit hard to predict, but what’s become increasingly clear that trying to jam through some sort of re-authorization is going to face serious opposition — in the Senate and in the House,” said American Civil Liberties Union legal counsel Neema Singh Guliani. “You could see the passage of the USA Freedom Act — which is not strong enough — or we can see a temporary sunset.”
The House version of the USA Freedom Act is widely regarded by privacy activists as a “compromise bill” that lacks much-desired comprehensive reform, but does put limitations on government data surveillance.
Bulk collection as it’s known will end regardless of whether the Senate passes the USA Freedom Act as is. The House-passed bill scraps the current program under Section 215 and eliminates dragnet collection such as nationwide collection, states, ZIP codes, or whole services such as Gmail, Singh Guliani said.
But unless the Senate passes the bill without changes, the metadata program will shut down until House members get back from recess to approve any amendments, Brennan Justice Center’s Goitein said. That means the program would be dismantled for at least a few days after June 1 until the a new Foreign Intelligence Surveillance Court order could be approved and the program’s infrastructure get booted back up. (The Justice Department said Wednesday it would start shutting down the program’s machines Friday — 10 days before the sunset — to make sure it was in compliance.)
And a shutdown of any length of time is certainly worth celebrating, CDT’s Laperruque said. “If there’s a sunset I think it will show this is something the public doesn’t want and that Congress doesn’t have the ability to maintain.”
The intelligence community, however, would disagree. On top of the Justice Department’s memo to Congress, Federal Bureau of Investigations Director James Comey warned in a speech at Georgetown University Law Center that letting the Patriot Act expire threatened national security.
“If we lose that authority . . . that is a big problem,” adding the FBI could be put in a position where it can’t get records for terrorism or espionage queries with a grand jury subpoena or national security letter, the Washington Post reported.
No matter what happens in this week’s vote, privacy advocates agree the result will be good. “It’s really fascinating because McConnell was gambling that he could ram a re-authorization through at the last minute, and he lost,” Goitein said with a chuckle.
“At a minimum, we learn the sky doesn’t fall if the government doesn’t get bulk collection of phone records for surveillance…The Patriot Act did not invent surveillance or the collection of business records. We’ll just go back to a system where surveillance is predicated on individuals. I think that will be a good lesson to come out of all this.”