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.