Senate Majority Leader Mitch McConnell announced Thursday morning that the chamber would hold a rare Saturday vote on two pieces of legislation related to NSA surveillance. The vote comes as key NSA programs are set to expire on June 1 without action from Congress.
McConnell’s announcement comes as privacy advocates have been calling for reforms ahead of the June 1 deadline. Senator Rand Paul of Kentucky spoke on the Senate floor for almost 11 hours last night about the need for surveillance reform, attempting to force a debate. Earlier this week the American Civil Liberties Union released polling to show that congressional action on surveillance does not match up with the majority of Americans’ opinion that the agencies tactics should be reformed.
Despite his own preference of a clean reauthorization of the Patriot Act, McConnell agreed under intense political pressure to allow a vote on the USA Freedom Act. The bill passed with a huge, 338-88 majority, in the House. TechCrunch noted at the time that the reform bill faced an “uncertain future” as it moved to the Senate. A week later, senators remain undecided on how they will cast their votes on Saturday.
When the Senate shut down a similar version of the FREEDOM Act last year, the vote fell strictly on party lines, with dissenting votes from only one Democrat and all but four Republicans. This time around it seems more Republicans will be supporting the reform bill. The Hill reported at least half a dozen have already signed on, and many remain undecided. But with Republicans holding the majority of seats in the Senate now, it still may not be enough for the Freedom Act to prevail.
In addition to voting on the FREEDOM Act, senators will also consider McConnell’s clean reauthorization. Even if he’s able to find votes for the reauthorization in the Senate, the NSA program will temporarily shut down because the House will not be in session to vote on it again until June 1, the morning the PATRIOT Act provision shuts down.
Shutdown
Earlier this week, the Obama administration indicated to the National Journal that while the sunset date isn’t quite upon the Federal government, it would start to “wind down the bulk-telephone-metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata,” according to a memo.
The move makes some technical sense, presuming that the mechanisms in place to accept, store, and handle a huge volume of telephone metadata are likely slightly more complicated than a single piece of software that can be quickly shuttered.
The timing that the government selected to start to dismantle the program, however, is slightly suspicious. By commencing to take the program apart on Friday, the Federal government set it right at the end of what was expected to be the Senate’s session. The choice added extra weight to the legislative calendar, as the Senate faced a quicker deadline than the sunset provisions dictate. Whether you find the coincidence to be accident, or political theater will depend on your politics.
Criticism
Despite a wide majority in the House, and at least some bipartisan support in the Senate, the USA FREEDOM Act is anathema to many politicians. On the opposite side of Senator Paul is Governor Chris Christie, who recently presented a broad defense of the NSA. The jeremiad also brought up traitor-whistleblower Edward Snowden:
“Let’s be clear, all these fears are exaggerated and ridiculous. When it comes to fighting terrorism our government is not the enemy, and we should not be listening to people like Edward Snowden.”
The Wall Street Editorial page has characterized the recent political action as the “anti-surveillance rush.” They called on the Senate to take a short-term clean reauthorization so that they have time to properly debate the FREEDOM Act.
“The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing. The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance.”
The right, however, is not alone in its criticism of the FREEDOM Act. The Intercept, a publication best known for its association with Glenn Greenwald, a central character in the NSA leaks saga, published a piece dismissing the Act as insufficient in its reform reach.
After asserting that the metadata program was essentially collapsing under its own weight, The Intercept’s Dan Froomkin argued that the bill is all but a paper tiger:
“The Freedom Act would impose new restrictions on the NSA for the first time in four decades — while codifying a new way for the government to search through phone records in a way that had no precedent before 9/11. It would also do nothing to limit NSA programs officially targeted at foreigners that “incidentally” collect vast amounts of American communications. It would not limit the agency’s mass surveillance of non-American communications at all.
So while the hardliners are providing a media narrative that makes it look like a big victory for reformers, by fighting until the last minute, it’s not.”
Next Steps
Even with criticism coming from both sides, the FREEDOM Act has received the support of the tech community. If the Senate chooses to pass the bill on Saturday, it would be a step in the right direction and mark the first time Congress has voted to reform the NSA in the wake of the Edward Snowden disclosures.
Yes, it is a limited bill that really only addresses one of the many controversial programs we learned about two years ago. But the phone metadata was the first program disclosed and the most well-known, so it makes sense to start there before moving on to other programs authorized under FISA and E.O. 1233.
But hopefully for once our congressional gridlock will work in favor of surveillance reformers, and we could see a total shutdown of the bulk phone record collection program on Saturday.
Given the stated public will, collected cries of the technology business community, and bipartisan support for reform, if all that the Senate manages to accomplish is a reauthorization of the Patriot Act sections set to sunset, a real moment will have been lost.
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