Failure to pass US surveillance reform bill could still curtail NSA powers

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If the Senate doesn’t pass the USA Freedom Act after the midterm elections, a key section of the Patriot Act could expire

Two members of the US House of Representatives are warning that a failure to pass landmark surveillance reform will result in a far more drastic curtailment of US surveillance powers – one that will occur simply by the House doing nothing at all.

As the clock ticks down on the 113th Congress, time is running out for the USA Freedom Act, the first legislative attempt at reining in the National Security Agency during the 9/11 era. Unless the Senate passes the stalled bill in the brief session following November’s midterm elections, the NSA will keep all of its existing powers to collect US phone records in bulk, despite support for the bill from the White House, the House of Representatives and, formally, the NSA itself.

But supporters of the Freedom Act are warning that the intelligence agencies and their congressional allies will find the reform bill’s legislative death to be a cold comfort.

On 1 June 2015, Section 215 of the Patriot Act will expire. The loss of Section 215 will deprive the NSA of the legal pretext for its bulk domestic phone records dragnet. But it will cut deeper than that: the Federal Bureau of Investigation will lose its controversial post-9/11 powers to obtain vast amounts of business records relevant to terrorism or espionage investigations. Those are investigative authorities the USA Freedom Act leaves largely untouched.

Section 215’s expiration will occur through simple legislative inertia, a characteristic of the House of Representatives in recent years.

Already, the House has voted to sharply curtail domestic dragnet surveillance, both by passing the Freedom Act in May and voting the following month to ban the NSA from warrantlessly searching through its troves of international communications for Americans’ identifying information. Legislators are warning that the next Congress, expected to be more Republican and more hostile to domestic spying, is unlikely to reauthorise Section 215.

“Senators obstructing passage of the USA Freedom Act risk losing Section 215 altogether,” Congressman James Sensenbrenner, the Wisconsin Republican and Freedom Act co-author, told the Guardian.

“Section 215 sunsets next June, and given the administration’s staggering misinterpretation of the law, the House is highly unlikely to reauthorisze it absent significant reforms.”

Sensenbrenner’s Democratic colleague on the House judiciary committee, Zoe Lofgren of California, said the House would be “hard-pressed” next year to find the votes for saving Section 215 should the USA Freedom Act fail.

The FBI has for years argued that its Section 215 powers, which permit the bureau to collect “any tangible thing” relevant to a terrorism or espionage investigation at standards lower than probable cause, are critical for protecting the US against shadowy threats.

Lofgren suggested that a House scorned over the USA Freedom Act would not be receptive to FBI entreaties to renew its “extraordinary powers” that “many believe [are] unconstitutional”.

If the USA Freedom Act, already criticised as an insufficient reform, cannot be passed, “falling back to the fourth amendment is not a bad outcome,” Lofgren said.

Still, proponents of surveillance reform in and outside of Congress are mindful that their window might be closing. Edward Snowden’s revelations about bulk surveillance feature less in elite Washington discussions than do apocalyptic official warnings about threats from Islamic State (Isis) militants or other terrorist groups, political terrain favourable to the NSA.

Earlier this month, the top Republican on the Senate intelligence committee, Saxby Chambliss of Georgia, insisted the USA Freedom Act would “take away the ability to monitor Isis”. While the bill would not impact the NSA or FBI’s authority to target a known terrorist group, particularly overseas, privacy advocates consider Chambliss’s statement a barometer of their rising legislative opposition now that the US is again bombing an enemy in Iraq.

Surveillance reform is beset by enemies in the Senate, chiefly an intelligence committee that is far from sold on the bill. A committee hearing in June exposed scepticism from senators toward its central premise of ending domestic bulk collection and wariness that phone and data providers could destroy customer records before the FBI or NSA knows it needs them.

Some telecommunications companies keep billing records longer than they keep more-detailed calling records, alarming some senators on the panel.

The USA Freedom Act’s Senate architect, Patrick Leahy of Vermont, is said to be unreceptive to his colleagues’ desires for a data-retention requirement in the bill.Photograph: Win McNamee/Getty Images

The USA Freedom Act’s Senate architect, Patrick Leahy of Vermont, is said to be unreceptive to his colleagues’ desires for a data-retention requirement in the bill.Photograph: Win McNamee/Getty Images

As the bill has stalled since its July introduction, privacy groups have worried aloud about the Senate acting to require companies to keep their customer data longer than the present 18-month average maximum, something telecommunications companies have rejected as expensive and legally problematic. Current data-retention practices result largely from a Federal Communications Commission regulation, not a law.

The USA Freedom Act’s Senate architect, judiciary committee chairman Patrick Leahy of Vermont, is said to be unreceptive to his colleagues’ desires for a data-retention requirement in the bill.

“Senator Leahy carefully crafted legislation to end bulk collection that has the support of privacy advocates, technology companies, the intelligence community, the administration and members of both parties. A data retention mandate is neither necessary nor desirable,” said a Senate judiciary aide who would not speak for attribution.

If the USA Freedom Act fails, so will its provisions for greater disclosure of major surveillance-court rulings and its empowerment of privacy advocate to argue against the government before the so-called Fisa court in certain cases. The expiration of Section 215 would not authorise those proposals.

A lawyer for the digital rights group Access called the USA Freedom Act “still the best vehicle for reform that is on the table,” a view not shared by all civil libertarian groups.

“However, it’s a good sign that lawmakers are preparing to leverage the Section 215 sunset in order to halt the unlawful, unaccountable, and rights-infringing surveillance practices of the US government,” said Amie Stepanovich of Access.