Pro-NSA senators aim to weaken USA Freedom Act’s privacy protections

As the Senate prepares to pass a bill reviving and reforming government surveillance powers that just expired, Senate Republicans are crafting a strategy to weaken that bill’s most ambitious reforms.

Senate Majority Leader Mitch McConnell (R-Ky.) began the process Sunday night by filing several amendments to the bill, known as the USA Freedom Act, which the Senate failed to pass due to objections from Sen. Rand Paul (R-Ky).

Because the Senate did not pass the bill, three provisions of the USA Patriot Act of 2001—Section 215, the “roving wiretap” provision, and the “lone wolf” provision—have now expired. The Senate is expected to hold a final vote on the USA Freedom Act as early as Tuesday, and the bill is expected to pass. But if McConnell’s amendments also pass, the bill will emerge from the Senate in a substantially weaker form.

In its current form, the USA Freedom Act ends the government’s collection of bulk telephone records under Section 215, giving the government 180 days to transition collection responsibility to the phone companies. It also requires the court that oversees government surveillance requests, the Foreign Intelligence Surveillance Court (FISC), to appoint privacy advocates, known as amicus curiae, to challenge those requests. The government is currently the only party that addresses the court in these secret proceedings.

But McConnell, a staunch supporter of the surveillance state, opposes these reforms. He tried last weekend to get the Senate pass a bill that would have reauthorized all three Patriot Act provisions without any changes. Having failed to pass that bill, he acknowledged Sunday night that the USA Freedom Act was the only feasible option. But Paul’s objections pushed the reform bill past the expiration deadline, and now McConnell wants to try to water it down.

Before the Senate adjourned last night, McConnell filed multiple amendments to the USA Freedom Act, which would:

1. Eliminate the FISC amicus-curiae measure
2. Eliminate the mandatory declassification of major FISC rulings
3. Extend the transition period from 180 days to a year
4. Require phone companies to notify the government if they decide to reduce the amount of time they hold onto customer records to less than 18 months
5. Require the Director of National Intelligence to certify that the new Section 215 program—where phone companies hold onto the records—works to the intelligence community’s standards

“These fixes are common sense,” McConnell said in a statement on Monday. “And whatever one thinks of the proposed new system, there needs to be a basic assurance that it will function as its proponents say it will.”

The USA Freedom Act does not require phone companies to hold customer data for any period of time, but they regularly retain it for standard business purposes, such as customer billing. Republicans have criticized the bill’s lack of a “data retention mandate,” saying its absence risks letting crucial information on terrorist activities vanish into the ether.

Reform advocates consider the extension of the transition period to be a stalling tactic designed to give the USA Freedom Act’s opponents more time to weaken the bill.

The intelligence community does not believe it will need more than 180 days to transfer the records-collection infrastructure to the phone companies, senior administration officials said recently on a background call with reporters. Those officials also said that, if the government ended up needing more time, it could always come back to Congress for legislation to that effect.

Illustration by Max Fleishman