This week, the PATRIOT Act is back in the limelight. This past weekend, the Senate refused to reauthorize Section 215, the contentious section of the PATRIOT Act, which has been interpreted as authorizing the NSA to engage in bulk collection of Americans’ telephone metadata, setting the stage for an interesting week before the provision sunsets on June 1st.
Currently, the Senate has a number of paths forward: gridlock, which will force expiration of Section 215; passing the USA Freedom Act (USAF) which, although it reauthorizes broad swaths of the PATRIOT Act, affirmatively ends the Section 215 program while also increasing the transparency of the FISA court process and holding government agents more accountable for information they seek to query; or amend USAF to make it more, or less, appealing to the civil libertarian wings of both parties.
Many libertarians have argued that USAF does not go far enough in stripping the intelligence community of its surveillance powers. Most notably, Sen. Rand Paul held up the Senate agenda with a filibuster against PATRIOT Act reauthorization over the Memorial Day weekend, sufficiently forestalling the Senate’s legislative timetable to ensure that the contentious Section 215 authority will more than likely sunset come this Sunday at midnight. While many libertarians view this as a good thing, others are concerned over the uncertainty of what could potentially fill the void in the wake of a sunset. USAF, by contrast, seems to be the best bet the Senate has for addressing Americans’ concerns over dragnet surveillance and showing their constituents that this is, in fact, an issue they take seriously.
On the other hand, many civil liberties advocates believe this entire legislative episode is unnecessary given a recent decision by the U.S. Second Circuit Court of Appeals, which recently ruled that the government’s interpretation of Section 215’s scope exceeded the NSA’s legal authority. The court, correctly, recognized that:
[T]he government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.
Although the Second Circuit has effectively declared the NSA’s broad interpretation of Section 215 authority illegal, the fundamental constitutionality and potential fourth amendment violations were not addressed. Indeed, the court’s decision made it clear that issues of constitutionality would not be addressed, rather leaving it to Congress to do its due diligence in debating the value these programs offer the American people:
We reiterate that, just as we do not here address the constitutionality of the program as it currently exists, we do not purport to express any view on the constitutionality of any alternative version of the program. The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.
While the court has clearly drawn a line in the sand over the excesses of the NSA’s creatively interpretive approach to defining its authority under 215, the debate over government surveillance is far from over.
House leadership has made it clear that short-term reauthorization is off the table (which should come as no surprise given the 338-88 vote in favor of USAF), but Senate Majority Leader Mitch McConnell will likely be pushing for a last minute reauthorization this Sunday, May 31st, during which the Senate will convene in a special session to decide the fate of the NSA’s dragnet surveillance programs, mere hours before Section 215 is set to expire.
So what happens moving forward?
For the time being, it appears plausible that USAF could pass the Senate, assuming at least three of the Republicans currently on the fence are willing to lend their support to the bill, thereby achieving a 60 vote filibuster-proof majority. Alternatively, even if USAF does not pass this Sunday night, it would likely result in a de facto end to Section 215. The worry with the latter approach is that Congress could, moving forward, pursue amendments or bills that would actually strengthen the remaining provisions of the PATRIOT Act (such as Section 702 of the FISA Amendments), which would effectively nullify any victory over the surveillance apparatus in the near term. USAF, by contrast, has wide cross-ideological support; with a significant number of privacy advocate groups and nonprofits, including the Niskanen Center, as well as the Obama Administration and high-ranking intelligence officials having vocalized support for the bill.
In addition, numerous tech firms have also signaled their support for USAF, arguing that until Congress takes up the responsibility of acting on the surveillance issue, they will continue losing business to software companies overseas. Organizations from the Information Technology and Innovation Foundation to Forrester Research have estimated the potential economic losses to U.S. tech firms at anywhere between $22 billion and $180 billion by 2016. But it’s not just domestic tech firms that are being harmed; many foreign firms have been withdrawing investments in U.S. operations since Edward Snowden first made the public aware of the true extent of the NSA’s surveillance program in the spring of 2013. The Senate finally has a bill with wide-ranging support before it for a vote – whether it takes advantage of this important and symbolic moment will be clear on Monday morning.
Whatever the outcome of this Sunday’s vote, Americans will likely walk away from the Senate’s decision feeling a little bit freer than they were before. However, our country still has a long way to go before the post-9/11 panopticon is soundly, and permanently, scuttled.