by Eyder Peralta
The rest of the month is setting up to be pretty dramatic in the Senate.
A key section of the Patriot Act — the part of law the White House uses to conduct mass surveillance on the call records of Americans — is set to expire June 1. That leaves legislators with a big decision to make: Rewrite the statute to outlaw or modify the practice or extend the statute and let the National Security Agency continue with its work.
As the Senate debates, we answer six questions that’ll get you up to speed:
1. What’s Congress debating here?
You may have heard the entire post-Sept. 11 Patriot Act was due to expire soon. In fact, only three provisions of it — sections 206, 215 and 6001 — are expiring. The sticking point, however, is Section 215.
At issue there is the NSA’s practice of collecting and storing certain telephone information — things such as phone numbers and duration of calls, but not the content — about all phone calls made in and out of the United States.
The House already passed a bill that would outlaw such surveillance. Under the bill, the United States would no longer be allowed to keep a massive database of call data. Instead, the data would remain with service providers and the government can seek court orders for specific records.
The Senate failed to advance a similar measure last year, and it doesn’t appear as though Senate Republicans want to advance the House version.
Senate Majority Leader Mitch McConnell, a Republican from Kentucky, introduced a bill last week that would simply extend the expiring provisions of the Patriot Act for two months.
“I don’t want us to go dark, in effect, and I’m afraid that the House-passed bill will basically be the end of the program and we will not able to have yet another tool that we need to combat this terrorist threat from overseas,” McConnell said on ABC’s This Week.
If you remember, the NSA’s bulk collection program was thrust into the spotlight by former NSA contractor Edward Snowden. One of the first leaked documents made public was a secret court ruling that ordered Verizon to hand over the telephone metadata of all its customers.
The Obama administration has defended the practice. Former FBI Director Robert Mueller told Congress that if this capability was taken away it would leave the country “exceptionally vulnerable.”
The Privacy and Civil Liberties Oversight Board, set up by the White House, came to a very different conclusion: The board recommended ending the program and said it has been ineffective at fighting terrorism.
It’s important to note that this program is by far the more controversial of all of the NSA’s surveillance activities we know of because it targets Americans.
Many of the other activities that have been brought to light by the Snowden leaks target foreigners and sometimes may capture the information of Americans along the way.
2. Where does the White House stand on all of this?
The White House said last week that it “strongly supports” the House’s NSA reform bill. This does not mean that the administration supports ending the surveillance altogether.
Instead, the statement is in line with a speech President Obama gave during theSnowden fallout in January 2014. In it, Obama said he would prefer that the government not keep a massive database of Americans’ telephone metadata. Instead, the data could live elsewhere and the U.S. government could query the information based on each investigation.
3. I thought a federal court had decided the practice was illegal?
It did. A three-judge panel of the 2nd U.S. Circuit Court of Appeals said bulk collection is not authorized by The Patriot Act, but knowing that Section 215 was about to expire, the court stayed its decision to let Congress deliberate.
4. You keep talking about telephone surveillance. What about the NSA’s surveillance of email and other Internet activity?
This congressional debate has nothing to do with any of the NSA’s surveillance of Internet activity.
That’s mostly because of the fact that those programs are authorized by different laws.
The PRISM program, for example, which collects a vast amount of Internet data — content and all — is covered under Section 702 of the FISA Amendments Act.
The House bill, also known as HR 2048 — or the USA Freedom Act, does not tackle 702 at all. Two big reasons: It’s not expiring, and it doesn’t directly target Americans (though as we learned through the Snowden leaks, a lot of the content of Americans’ Internet communication gets trapped in the dragnet).
5. Is there anything else in the House bill we should know about?
A couple of things: The bill lifts the secrecy surrounding key decisions made by the secret Foreign Intelligence Surveillance Court. Going forward, some will be made public.
This is important because it was that court that found bulk data collection constitutional. The legal reasoning remained secret for years. The Obama administration declassified some of those rulings after the Snowden leaks.
HR 2048 also allows companies to challenge National Security Letter gag orders. That’s a kind of subpoena issued by the FBI when it is seeking info about, for example, Internet companies’ customers. The subpoenas also come with gag orders, so the companies are not allowed to notify their customers or even ask a court to intervene. This bill would allow companies to challenge the order.
6. In short then, what’s the most likely outcome for all of this?
It’s likely to go one of three ways:
- Congress kicks the can down the road and passes a short extension of the Patriot Act provisions, like McConnell has suggested. The only issue here is that the 2nd U.S. Circuit Court of Appeals could step in and stop the NSA’s bulk collection program. In its decision, the court said the program amounted to “an unprecedented contraction of the privacy expectations of all Americans.” Therefore, if Congress wants to authorize such a program, it should pass a law that unequivocally gives the United States the power to collect phone metadata in bulk.
- The Senate could simply pass the House bill. This is looking less likely, because a number of Senate Republicans seem to be philosophically opposed to taking some surveillance powers away from the NSA.
- There’s no agreement and parts of the Patriot Act expire. If that happens, bulk collection simply ends, as there is no program to take its place.