A special Sunday session of the US Senate ended without an agreement to renew some key features of the USA Patriot Act, bringing an abrupt halt to several controversial intelligence programs including the government’s bulk collection of phone records.
Senators though did vote to reconsider a bill that would restore some of the government’s surveillance powers while also adding new checks to the process. But that bill has already been blocked once, and any changes or new amendments could complicate the effort to find a speedy solution.
What’s at stake?
At the center of this controversy is the government’s program to sweep up information about virtually every phone call passing through the United States.
This doesn’t include audio of the call itself. Instead, companies hand over details such as when the call was placed, who made it, the number being dialed, and how long the call lasted. This information is called metadata, and while it may seem innocuous, it can reveal a tremendous amount of information. Various studies have shown that metadata alone can let people figure out your sexual orientation or the likelihood that you’re having an affair.
Authorization for this program had been based on a part of the Patriot Act called Section 215, but that provision expired Sunday at midnight.
Does the expiration matter?
The expiration of Section 215 not only brings an end to the NSA’s phone records program, it has broader consequences as well.
A report last week from the Justice Department’s inspector general detailed how the FBI has been using Section 215 to examine electronic metadata, including from e-mail and text messages. Presumably, efforts like that will also have to stop. Plus, there are two less controversial provisions of the Patriot Act which have also expired, despite the fact that they enjoy broad support in Congress — one that widens the FBI’s wiretap authority and another that makes it easier to track “lone wolf” figures who aren’t working within a terrorist organization.
What’s been happening in Washington?
The House passed a bill called the USA Freedom Act, which would have stopped the government from collecting phone records and forced the phone companies to keep that information instead. It also reauthorizes the two other expired provisions and includes a host of other changes to the way US intelligence is collected, and surveillance conducted.
If the Senate can pass its own version of the bill, without making changes, then it can go straight to the president and quickly become law.
However, any amendments or alternations will force a negotiation between the House and Senate. And delay is likely to make reauthorization more difficult, as the pressure of the deadline recedes and the NSA and the intelligence communities develop new approaches.
The administration and the intelligence community have been pressing the Senate to act quickly, arguing that failing to do so would weaken US intelligence.
What the intelligence community hasn’t been able to do is give concrete examples of how Section 215 and the bulk collection programs have unearthed terrorist plots or saved American lives. That may be because such information is too delicate to share. But in the absence of good evidence, it’s hard to assess whether these programs are truly vital.
Is this the end of government surveillance?
Not at all. Many NSA programs will remain wholly untouched, whatever the outcome.
Ultimately, the long-term fate of the Patriot Act and government surveillance probably depends on forces well beyond this Congress. Keep in mind, some of these programs began life without Congress; the phone records program was established secretly after 9/11, and it operated for years before anyone even claimed it was authorized by Section 215 — and much longer than that before its existence was revealed to the public by Edward Snowden.
Future surveillance programs may well follow the same life cycle, going into operation before they’re ever authorized by Congress, much less revealed to the people of the United States. It’s not implausible that, years from now, future legislators will find themselves back where we are today: arguing about whether to provide solid legal justification for intelligence programs they didn’t envision.
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Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the United States. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeHorowitz