Politics are getting a little weird these days. Fresh off of Tuesday’s stunning blockage and negotiated do-over on the Trans-Pacific Partnership (TPP), in which President Obama found himself supported by Republicans amid staunch opposition by his own party, the Republican-led House of Representatives overwhelmingly passed the USA Freedom Act by a 338-88 vote. The measure, which mandates a toned-down version of the controversial NSA-spying program exposed in 2013 by Edward Snowden, is geared as a more restrictive replacement to the Patriot Act’s section 215. This was the piece of legislation used to justify the agency’s bulk telephone record collection of U.S. citizens, at least until it was declared unconstitutional last week by the 2nd Circuit U.S. Court of Appeals. The president supports the new measure, long-calling for a sensible reform to the program.
Although Senate Majority Leader, Mitch McConnell has been a steadfast supporter of Obama’s TPP authority, passage of the USA Freedom Act in the Senate may signal a return to politics as usual. McConnell appears to have his own agenda on the matter, introducing legislation in April to reauthorize section 215 of the Patriot Act as-is until 2020, a move that was brought with nearly universal disdain. Given his powerful position, however, he may still get a vote on the matter before section 215 expires on June, 1st. Democrats have vowed to block it, and they may force McConnell’s hand to accept the new legislation regardless. A similar measure passed the House as well last year, but came up two votes shy of preventing a filibuster in the Senate.
If the USA Freedom Act does pass the Senate and become law, it offers major rollbacks of the NSA program. Perhaps the biggest difference is that the data that is collected will be stored at the telecommunications providers’ facilities and not in NSA Databases. Additionally, NSA officials will be required to receive permission from the Foreign Intelligence Surveillance Court (FISA) in order to access the information. The legislation also requires narrower search terms in order to keep the information focused and containing less superfluous data. It also mandates any information that the government uses be destroyed after 18 months instead of kept indefinitely. Representative John Conyers (D-MI) calls it the end of “dragnet surveillance,” saying “Today, we have a rare opportunity to restore a measure of restraint to surveillance programs that have simply gone too far.”
Many critics of the Patriot Act and privacy advocates have expressed mixed-feelings about the new legislation. Although citing some improvements with the new bill, campaign director of the internet freedom group Fight for the Future, Evan Greer, cites many issues with it. He believes that some provisions, like one allowing video-chats to be monitored actually expand the surveillance powers as well as contain language that still allow for warrantless searches in times of emergency. Greer said, “It completely fails to meaningfully curtail mass surveillance and actually codifies some of the worst modern spying practices into law.” Another major advocacy group, The Electronic Freedom Foundation, supported the bill until the 2nd Circuit made its ruling on the Patriot Act’s section 215; however, it now supports the previous version of the bill that was filibustered last year in the Senate, which called for somewhat stronger reforms. Advocates on both sides of the USA Freedom Act believe, much like their use of section 215, that the NSA will make every attempt to stretch the language of the bill as liberally as it possibly can. Proponents like Conyers, however, say that even if so, the process will be public and known. Conyers said after the bill’s passage, “The government may one day again attempt to expand its surveillance powers by clever legal argument, but it will no longer be allowed to do so in secret.”
Whether or not the USA Freedom Act will become law largely rests on the shoulders of one man, Mitch McConnell. Not a fan of the USA Freedom Act, McConnell defended section 215 when he proposed the reauthorization last month. Calling the USA Freedom Act “an untested, untried and more cumbersome system,” McConnell stood by the Patriot Act, saying that “Section 215 helps us find a needle in the haystack. But under the U.S.A. Freedom Act, there might not be a haystack at all.” It is unknown if the landslide victory in the House as well as the 2nd Circuit’s ruling, which is non-binding but tone-setting, will ultimately sway his thinking. If anything will, it will likely be time. With section 215 expiring in less than 3 weeks and a Memorial Day recess beginning next Friday, time is of the essence, especially in light of the impending TPP re-vote. The other option, which still might occur if McConnell has yet to be swayed, is to reauthorize section 215 for another month and work on achieving some compromise through either amendments or through promises of future votes on unrelated matters. Although he might not be able to dictate the result, all eyes are on McConnell as to the future direction of the issue.
The Atlantic – Russell Berman
Wired – Kim Zetter