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.”

———————-

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License

As Patriot Act Expiration Looms, Critics Hope for Sunset on Mass Surveillance

With a deadline for the USA Patriot Act fast approaching, Congress has little time to decide how to proceed—but the call to ‘sunset’ the law is growing. (Photo: Dan Cook/flickr/cc/with overlay)

‘Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.’

By Nadia Prupis and Deirdre Fulton

With the fate of the USA Patriot Act still hanging in the balance late afternoon Friday—and lawmakers eager to leave Washington, D.C., for Memorial Day barbecues and campaign stops in their home states—the chance to see the sun go down on the controversial spying bill is still on the table.

The debate over the Patriot Act is centered around one of its key provisions, Section 215, which is set to expire on June 1 absent congressional action. The U.S. National Security Agency (NSA) previously relied on Section 215 to justify its mass phone data collection operation, but its expiration would force an end to that program.

With that “sunset” approaching, lawmakers have the chance to reform the Patriot Act, end it altogether, or pass a clean re-authorization that renews all the provisions set to expire in mere days.

Senate Majority Leader Mitch McConnell (R-Ky.) is the most outspoken supporter of a clean re-authorization, arguing that the Patriot Act in its current form is a crucial tool in the so-called “War on Terror.” FBI director James Comey also said this week that it would be a “big problem” to lose the authority that the law bestows on the intelligence agencies.

Adding to the urgency is the Obama administration’s warning that Congress only has until Friday to act on the law, because the government will need time to scale down its phone data program if it is not re-authorized. The House of Representatives has already left for the Memorial Day weekend.

The White House, along with the U.S. House, supports reform legislation called the USA Freedom Act, and warned that “there is no Plan B, these are authorities Congress must legislate.”

Should the Senate fail to pass the reform bill, said White House press secretary Josh Earnest on Friday, there is nothing the president can do to stop the Patriot Act provisions from lapsing.

Of course, that would be just fine with privacy activists and advocacy groups who oppose intrusive government surveillance. At protests held in dozens of cities on Thursday, demonstrators called on Congress to oppose any re-authorization of the Patriot Act and instead let its spying provisions sunset as scheduled on June 1.

“It’s time we came together and let the sun go down on this dark age of government surveillance,” said Fight for the Future campaign director Evan Greer. “Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.”

Free Press Action Fund government relations manager Sandra Fulton added, “The nationwide sunset vigils have sent a signal to Washington: It’s time we closed this chapter on mass surveillance and restored everyone’s rights to connect and communicate in private.”

However, The Hill reported Friday that “momentum appeared to be on the side of reformers, whose hopes were buoyed by the near certainty that the Senate will either need to pass [the House version of] the USA Freedom Act, or allow three parts of the post-9/11 law to sunset.”

The report went on to say the USA Freedom Act “has the backing of the majority of the Senate—including all Democrats—but it remains unclear whether it has the 60 votes necessary to overcome procedural hurdles during what increasingly looks like a rare Memorial Day weekend session.”

The USA Freedom Act passed the House on May 14 with an overwhelming 338-88 vote. But according to advocacy groups like the Electronic Frontier Foundation, the USA Freedom Act is a “small step instead of a giant leap,” particularly in comparison with previous iterations of the bill, introduced in 2013 and 2014, which offered stronger reforms but failed to progress through Congress.

The Act grants a five-year extension to Section 215.

After the bill passed the House, Tiffiniy Cheng, co-founder of Fight for the Future, warned that the USA Freedom Act would actually “expand the scope of surveillance” by the NSA and others.

“This is a fake privacy bill,” Cheng said. “Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as ‘USA Freedom.’ This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems.”

Opposition to the Patriot Act has grown steadily since whistleblower Edward Snowden in 2013 revealed Section 215’s role in the NSA spying program. The call to let the provision expire only grew after a federal appeals court ruled earlier this month that the agency’s phone surveillance operation is illegal. And as Mike Masnick at Techdirt points out, a Justice Department investigation into the FBI’s use of Section 215, released Thursday, found that the provision has never been particularly useful in anti-terrorism efforts.

—————–

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License