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The Senate is scrambling to prepare for a vote on a surveillance-reform bill that would end bulk government collection of Americans’ telephone records. But with barely two days remaining until the chamber recesses for a week-long break, it remains unclear if the measure has enough support to pass.
“We are pulling out all the stops to round up the votes for the USA Freedom Act,” Sen. Ron Wyden (D-Ore.), the top Democrat on the Senate Intelligence Committee and one of the bill’s chief supporters, said in an interview Friday morning.
“[The NSA’s bulk phone-data collection] is a program that’s ineffective, it does not make our country safer, and it impinges on our liberties,” Wyden said. “People who are very knowledgeable in the field say you can’t point to one single case—not one—where having these phone records stopped a terrorist act.”
Wyden was referring to the findings of President Obama‘s Privacy and Civil Liberties Oversight Board, which in January 2014 published a report on the bulk phone-records collection program that undercut its supporters’ main argument: that it was useful.
“You could collect medical records, financial records, gun records, and I’m just going to leave it at that. The authority would exist.”
“Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation,” the board wrote. “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
The USA Freedom Act, which has already passed the House, ends the bulk phone-records collection program that the government has operated under Section 215 of the USA Patriot Act. It shifts the responsibility for collecting and maintaining those records to the phone companies, which already retain them for business purposes including billing. Section 215, along with two other provisions of that 2001 law, expires at midnight on June 1. With the House in recess until June 1, the only way to extend these expiring provisions in any form is for the Senate to pass exactly what the House passed.
But Sen. Rand Paul (R-Ky.), who led a 10.5-hour floor speech against the Patriot Act on Wednesday, wants to introduce amendments to the USA Freedom Act that strengthen its reforms and add new privacy protections. That has put supporters of the bill in a bind. If any of those amendments were to pass, the House would have to return from its break and approve the modified legislation before a final bill could be sent to President Obama. Section 215 and the other two authorities—known as the “lone wolf” and “roving wiretap” provisions—would already have expired.
Wyden declined to address this complication when asked about Paul’s amendments.
“I’m still talking with Senator Paul about amendments,” he said. “We’ll have to reach some final judgments on that here pretty soon.”
Wyden did say that he was very interested in one of the amendments, which would end so-called backdoor searches of Americans’ communications. When the government collects the communications of foreigners, it often sweeps in data on Americans as well. Under current law, it can search through those records under the guise of analyzing the foreign communications. In doing so, the government is not required to conduct the privacy-focused “minimization” procedures that apply when it intentionally targets Americans for domestic law enforcement purposes.
“It is time, once and for all, to end bulk phone-record collection and end the domestic spying on law-abiding Americans,” Wyden said.
As the Senate struggled to determine when it would take up the USA Freedom Act—along with other reauthorizations of Section 215 that do not include reforms—the White House lobbied undecided senators to support the reform bill. The Obama administration met with several senators in the White House Situation Room on Thursday morning, and in a briefing with reporters late Thursday, senior administration officials stressed the broad national-security implications of Section 215 expiring outright.
“The USA Freedom Act is the only path for securing reform to the bulk telephony metadata program,” said a senior administration official in a call with reporters.
The NSA has already begun dismantling the bulk-records program in preparation for a lapse of authority, following a federal appeals court’s ruling that the Patriot Act never authorized the program in the first place. If the USA Freedom Act passes, it would shift the collection of those records to private companies, and the NSA would then have to begin working with the companies to set up the necessary infrastructure.
Senior administration officials dismissed Senate Majority Leader Mitch McConnell (R-Ky.)’s suggestion of a two-month extension of the Patriot Act without reforms, saying that approach was “fraught with uncertainty.”
Wyden said that he knew of “many senators who are very troubled about the idea of a short-term extension.”
The appeals court ruling and the House vote on the USA Freedom Act “make the status quo really not an option,” a senior administration official said.
“Kicking this can down the road and having that kind of uncertainty is just not good for [surveillance] operations,” said the official.
In the call with reporters, administration officials repeatedly emphasized that the appeals court’s ruling precluded the possibility of operating the bulk-records collection program without reforms.
“In light of the second circuit panel’s opinion,” said a senior administration official, “there’s significant legal uncertainty about the current bulk data telephony program.”
Because the NSA must comply with the expiration of Section 215 about six hours prior to the provision expiring, the agency needs to begin winding down the bulk-records program today.
Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, has proposed a modified USA Freedom Act that phases in the bill’s key reforms—including shifting collection responsibilities to the phone companies—over two years. Burr, a staunch advocate of the intelligence community, said that his bill was the only way to achieve reforms while giving law enforcement the necessary time to study the impact of those reforms.
Administration officials said that, while they hadn’t seen Burr’s specific proposal, they believed the USA Freedom Act’s 180-day implementation period was sufficient.
“There’s no reason to address that now,” a senior administration official said of the implementation window. If Congress really believed that the window was too short, the official said, both houses could return from break to pass an extension.
There was no reason, the official said, to “put those authorities in jeopardy with this.”
“The USA Freedom Act is the only path for securing reform to the bulk telephony metadata program.”
Asked if those authorities, which exist under Section 215, could be used to collect more than phone records, Wyden suggested that the answer was yes.
“You could collect a variety of other records,” said Wyden, who as a member of the Intelligence Committee has access to classified documents about U.S. surveillance operations. “You could collect medical records, financial records, gun records, and I’m just going to leave it at that. The authority would exist.”
Wyden noted that this was far from the first time that a debate over intelligence authorities had come down to the wire.
“There are a couple of … areas you can count on in terms of Washington, D.C.,” Wyden said. “The night follows the day, number one, and number two, those who have largely favored the intelligence status quo wait till the very last minute to bring these issues up.”
“I have long said that security and liberty are not mutually exclusive,” Wyden said. But the bulk phone-records collection program, he said, was “not about balance.”
“This is about having a program that is ineffective, does not make you safer, and compromises your liberties,” he said. “That’s not about balance; that’s just about bad public policy.”
Photo via Ashleigh Nushawg/Flickr (CC BY 2.0)
Eric Geller is a politics reporter who focuses on cybersecurity, surveillance, encryption, and privacy. A former staff writer at the Daily Dot, Geller joined Politico in June 2016, where he's focused on policymaking at the White House, the Justice Department, the State Department, and the Commerce Department.