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Keeping Up with the Snoops 11: News at Eleven

Two years after Edward Snowden revealed the U.S. National Security Agency’s mass surveillance programs to the world, Congress has passed the second incarnation of the USA FREEDOM Act, which partially reforms the USA PATRIOT Act and the FISA Court (as mentioned in “Keeping Up with the Snoops X 10.0,” 8 May 2015). When we last left off, the House of Representatives had passed the resurrected Freedom Act, but the resulting battle over it in the Senate, which had rejected the original Freedom Act (see “Keeping Up with the Snoops 7: Too Many Snoops,” 21 November 2014), is an interesting tale.

(By the way, did you know that both of these names are actually backronyms? USA PATRIOT Act stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” and USA FREEDOM Act stands for “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act.”)

An Old-Fashioned Kentucky Duel — For years, Congress reauthorized the “temporary” Patriot Act without much debate. But this time, a number of factors combined to thwart a straight reauthorization. First, of course, were Snowden’s revelations, which have sparked an ongoing public debate about anti-terrorism efforts.

More timely was a ruling by the Court of Appeals for the Second Circuit, on 7 May 2015, which declared bulk collection of domestic call records under Section 215 of the Patriot Act to be illegal (as covered in “Keeping Up with the Snoops X 10.0,” 8 May 2015). The ruling essentially stated that the program could not be legal, since Congress did not know about it, but that Congress was free to authorize such a program if it chose to do so.

This bumped into two key events: the week-long Memorial Day Congressional recess and the 1 June 2015 expiration of the Patriot Act. Thus the battle over mass surveillance was staged, with two key contenders: Republican senator from Kentucky Mitch McConnell, a staunch defender of the Patriot Act and mass surveillance, and Rand Paul, a quasi-libertarian presidential hopeful who has long opposed the Patriot Act. (Happily, Kentucky outlawed actual dueling among public servants in 1891.) McConnell opposed the House-backed Freedom Act, preferring a two-month Patriot Act extension. Meanwhile, Paul wished to defeat both the Patriot Act and the Freedom
Act, the latter of which reforms surveillance somewhat, but also reauthorizes three key Patriot Act provisions, including Section 215.

The duel began on 20 May 2015, when Rand Paul started a filibuster in an attempt to delay a vote on the Patriot Act. Assisted by Senators Ron Wyden (D-OR), Mike Lee (R-UT), and Ted Cruz (R-TX), Paul held court for 10.5 hours. Thanks to C-SPAN, you can watch or read the entire thing, if you have time to kill, or you can just read the highlights.

Due to the Senate’s schedule and the approaching week-long recess, votes on the Patriot Act and Freedom Act were pushed to a rare Saturday session, in which the Senate rejected both. The Senate then adjourned with those Patriot Act provisions on life support, but with a new vote scheduled for the following Sunday.

That day, 31 May 2015, Rand Paul and Mitch McConnell faced off again. McConnell attempted, several times, to pass temporary Patriot Act extensions, but each attempt was voted down. At that point, the only path forward for surveillance supporters was passing the Freedom Act, which had already cleared the House. Despite Paul delaying the vote, the Freedom Act managed to advance. But McConnell got the last laugh, as he succeeded in “filling the tree” of the Freedom Act with his own amendments,
blocking Senators Rand Paul and Bernie Sanders (D-VT) from adding their own.

In the meantime, phone records collection under Section 215 was left in limbo, if however briefly.

On Tuesday, 2 June 2015, Rand Paul had conceded that the Freedom Act was inevitable, and the Senate finally passed it, but voted against all three of Mitch McConnell’s amendments, which sought to water down the bill.

In the end, Rand Paul’s bluster didn’t amount to much, other than raising his visibility for his presidential campaign. It’s doubtful that there was enough political will in the Senate to give the Patriot Act a straight reauthorization, or to shoot it down completely. And all the doom and gloom talk over the Patriot Act deadline turned out to be merely hot air, as the controversial provisions were reauthorized after a temporary lapse.

As always, parody site The Onion probably came closest to the truth of the matter in its “Frustrated NSA Now Forced To Rely On Mass Surveillance Programs That Haven’t Come To Light Yet.” And indeed, even without the Patriot Act, law enforcement has a number of workarounds.

The Freedom Act — With President Obama now having signed the Freedom Act into law, federal law enforcement regains the capabilities that had lapsed, but with a few new limitations.

The three Patriot Act provisions that the Freedom Act renewed are:

  • Roving wiretaps, which allow law enforcement to obtain warrants on suspects, regardless of which devices the suspects are using.

  • The “lone wolf” provision, which allows law enforcement to obtain a warrant from the FISA court to monitor a suspect, even if the government can’t prove that the suspect is linked to terrorism or an agent of a foreign power.

  • Section 215, the so-called “library records” provision that allows the government to seize almost any record in an investigation, including banking, library, and phone records. However, there are important changes to how phone records will be collected.

These provisions are renewed until 31 December 2017.

The biggest reform of the Freedom Act is how it modifies Section 215 of the Patriot Act. Instead of law enforcement agencies collecting call records on their own, they must go to service providers for the information.

The bill also reforms the FISA court by calling for the appointment of a public advocate and requiring publication of some of the findings of the otherwise secret court. However, the government can argue that findings shouldn’t be published due to “national security” reasons, so I’d be surprised if we see much of anything.

The Freedom Act also requires National Security Letters to be more specific and requires public reporting on the number of FISA requests and National Security Letters.

However, the Freedom Act does nothing to change Section 702 of the Patriot Act, which is the legal basis for programs such as PRISM, the first big story out of the Snowden revelations. Like the other provisions, Section 702 is set to expire again on 31 December 2017.

In the here and now, the Freedom Act doesn’t do much to curtail mass surveillance. What it does do is signify a shift in the post-9/11 political culture, where Congress no longer blindly approves anything requested in the name of national security. The fight over mass surveillance is just beginning.

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