Yesterday, Sen. Rand Paul (R-KY) and several other senators critical of NSA spying staged a dramatic Senate filibuster to publicize the cause of reforming the NSA. Now the Senate is heading for a weekend showdown on NSA surveillance that could determine whether Congress will finally start to impose real limits on the spy agency.
Senate Majority Leader Mitch McConnell is planning to bring up two different pieces of legislation for a vote. One, favored by surveillance hawks including McConnell, would extend the NSA's existing spying authority for another two months. The second bill is the USA Freedom Act, which was approved by the House last week. It would narrow the NSA's spying powers and require greater transparency.
A third option, favored by a small but growing group of privacy advocates, is to simply let a key provision of the Patriot Act expire, without passing the USA Freedom Act.
McConnell is pushing the votes now because that Patriot Act provision is set to expire on June 1. And that's putting the NSA and its defenders in a tight spot. The House overwhelmingly favors reform and probably wouldn't vote to continue the NSA's current powers. And a recent court ruling calls the future of the NSA's phone records program into question, even if Congress did renew the current law.
We don't know how the Senate will vote, but the chances of significant NSA reform look better than they have in a long time.
Why the USA Freedom Act could be better for privacy
The USA Freedom Act has drawn criticism from some of the most ardent privacy critics, including Paul (R-KY), who see it as a vehicle for perpetuating, rather than ending, NSA spying. These hard-liners believe it's better to simply allow a controversial Patriot Act provision, known as Section 215, to expire. That would reduce NSA spying authority without granting the agency any new powers.
But advocates of the USA Freedom Act point out that Section 215 isn't the only legal basis for NSA spying programs. The government has invoked Section 215 to justify the collection of Americans' telephone records (though an appeals court ruled this was illegal earlier this month). But the NSA has a number of other spying programs, such as PRISM, that can also collect private information of innocent Americans.
These programs rely on other parts of the law that are not scheduled to expire on June 1. And so advocates say the USA Freedom Act — which contains a number of procedural and transparency reforms — would be an important step toward holding the NSA accountable.
At the same time, privacy experts say the USA Freedom Act has some flaws. "The bill allows for the collection of information 'two hops out' — records of entities who communicate with or are otherwise connected to a target," says Amie Stepanovich, a legal expert at the pro-privacy group Access. "This would wrap in sensitive information of potentially millions of non-targets."
The imminent expiration of Section 215 gives privacy advocates a strong bargaining position. If they do nothing, one of the most controversial NSA spying programs will be forced to shut down. And in the view of NSA critics, that would be a good thing.
Mitch McConnell faces an uphill battle to save the NSA's phone records program
McConnell (R-KY) is a strong NSA supporter, and he wants to ensure that the agency's phone records program can continue. But he faces three huge obstacles to making that happen.
First, it's not clear McConnell has the votes to pass a Patriot Act extension. Sen. Chuck Schumer (D-NY) has said there's "close to Democratic unanimity" in support of the USA Freedom Act, and a number of Senate Republicans favor reforms as well. So McConnell may not be able to get even a majority in favor of a "clean" extension of current law, to say nothing of overcoming a threatened filibuster.
Even if the Senate did pass a "clean" extension of Section 215, the House seems unlikely to follow suit. The House vote for the USA Freedom Act was 338 to 88, with overwhelming majorities of both Republican and Democrats supporting the legislation. It's hard to believe that after voting overwhelmingly to end the NSA's bulk collection program, the House would vote to renew current law with no changes.
Finally, it's not even clear that renewing Section 215 would save the NSA's phone records program. That's because a federal appeals court has ruled that the program is illegal under Section 215. The ruling ran counter to previous rulings by the secretive FISA court.
"We have a split of federal courts," Stepanovich told me on Wednesday. "It's going to depend on either the Supreme Court to step in, or for Congress to pass some kind of reform."
But merely renewing the existing, contested language of Section 215 won't clear up the dispute. Which means that even if McConnell somehow gets his legislation approved, it still might not save the NSA's spying program.