Yesterday the Senate pushed through consideration of the USA FREEDOM Act by a vote of 77-17, a significant turn of affairs from the 57-42 vote that failed to push the legislation forward the weekend prior. Sen. Rand Paul, in a raucously impassioned assault against the PATRIOT Act that would have made Howard Beale (“I’m mad as hell and I’m not going to take it anymore!”) proud, successfully forestalled Senate procedures to force Section 215 of the PATRIOT Act to sunset. Now, in theory, Americans are technically free from the shackles of the bulk metadata collection that was originally revealed to the public in the spring of 2013 by the Edward Snowden leaks. But that could change.
As the House and Senate move to reconvene, a vote on the USA FREEDOM Act could come as early as tomorrow, but there are a number of hurdles it still needs to overcome. Among these are the many amendments proposed by Sens. Burr and Feinstein, as well as a series of proposals from Sen. McConnell. All these proposed provisions would be a deathblow to the reform bill’s efficacy.
The Niskanen Center, along with a broad coalition of allied organizations, has thus far lent its support to USA FREEDOM, and will continue to do so as long as the central reform provisions remain. As Mike Godwin, chief counsel and director of innovation policy at the R Street Institute, noted in a press release from earlier today, “the fact that the Senate allowed this law to expire is proof that this type of mass collection of Americans’ records was never necessary in the first place … With the deadline behind us, we can now take the time to debate the issues fully and come up with a better-crafted law that both protects citizens’ privacy and serves our national-security and law-enforcement needs.”
As the Electronic Frontier Foundation recently pointed out, the expiration of Sec. 215 still leaves a very robust toolbox the NSA and other intelligence agencies can use to perform the vital function of protecting U.S. national security. But the expiration of these provisions, far from a major civil liberties victory, is only likely to produce uncertainty over what will, inevitably, replace the expired provisions. For this reason, the Niskanen Center continues to support USAF in its current, unaltered form. If Sens. Burr, Feinstein, or McConnell get their way, however, that support could very well wane.
While Rand Paul has seemingly delivered a coup de grace to the domestic surveillance apparatus, the truth is the intelligence community, as previously mentioned, is not hurting for tools; nor does it lack the ability to continue using creative interpretations of existing statutes that have not expired in the PATRIOT Act (i.e. Section 702 of the FISA Amendment) to justify bulk collection. The USA FREEDOM Act, for all its flaws, is the best path forward for civil libertarians seeking meaningful, impactful reform of the all-seeing eyes of the state.