With Deadline in Sight, Senate Scrambles on Patriot Act

Sen. Dianne Feinstein pushes new legislation that would criminalize whistleblower activity on national security

By Nadia Prupis

As public outcry against government spying reaches a fever pitch, the U.S. Senate is scrambling to address the USA Patriot Act, key sections of which are currently speeding toward expiration.

President Barack Obama on Tuesday warned the Senate—which is on a weeklong Memorial Day recess—to pass legislation that would renew those provisions, such as Section 215, which are scheduled to sunset on June 1.

“The problem we have now is that those authorities run out at midnight on Sunday,” Obama said. “So I strongly urge the Senate to work through this recess and make sure that they identify a way to get this done.”

The Senate on Friday rejected the legislation, known as the USA Freedom Act, which would have ended the National Security Agency’s (NSA) authority to collect domestic phone records in bulk, but would have renewed Section 215 and other controversial provisions of the Patriot Act which are set to expire next week. The U.S. House passed the USA Freedom Act on May 14.

On Senate Majority Leader Mitch McConnell’s watch, lawmakers are set to reconvene on Sunday, May 31 to vote again on the USA Freedom Act, as well as on another deal proposed—and rejected—last week that would have temporarily extended the Patriot Act.

The Senate will also consider legislation introduced by Sen. Dianne Feinstein (D-Calif.), which would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the U.S.

As Kevin Gosztola writes at Firedoglake, Feinstein’s bill—modeled after the Espionage Act—”would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.”

Observers say that the chances are slim that the Senate will embrace any of those bills after overwhelmingly rejecting two of them so recently—and that’s just what privacy advocates are hoping for.

The USA Freedom Act has gotten a lukewarm reception by digital rights organizations like Fight for the Future and the Electronic Frontier Foundation over what they say are insufficient reforms of the NSA’s spying powers.

Fight for the Future called the Senate’s rejection of the bill on Friday a “historic tactical win against surveillance.”

“Sunsetting the Patriot Act is the biggest win for ending mass surveillance programs,” Tiffiniy Cheng, co-founder of Fight for the Future, a coalition of civil liberties and privacy rights organizations, said at the time. “We are seeing history in the making and it was because the public stood up for our rights to freedom of expression and freedom of association—and there’s no turning back now.”

The Electronic Frontier Foundation explained the setup succinctly last week, with senior staff attorney Lee Tien writing in a blog post that the gridlock is “good news: if the Senate stalemate continues, the mass surveillance of everyone’s phone records will simply expire on June 1.”

“We commend every Senator who voted against reauthorizing the unconstitutional surveillance of millions of law-abiding Americans,” Tien wrote.

Congress should again reject renewing Section 215 on Sunday and instead “turn to addressing other surveillance abuses by the US government, including mass surveillance of the Internet, the secretive and one-sided FISA Court, and the problems of secrecy and over-classification that have created the environment that allowed such spying overreach to flourish,” he continued.

As ACLU legislative counsel Michelle Richardson wrote in an op-ed last Friday, “The question before Congress and the American people now is whether that provision should be renewed. The answer is a clear and resounding no.

“Voting for reauthorization of Section 215 now would not just be a missed opportunity for a serious debate about the role of government surveillance in our democracy; it would be an endorsement of the unconstitutional surveillance programs we already know exist, and a tacit endorsement of those we’re still in the dark about.”

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