The U.S. House of Representatives’ resounding vote on Wednesday to end the National Security Agency’s collection of phone metadata and business records shifts the Senate focus squarely onto the shoulders of Kentucky Republican Senator, Mitch McConnell.
McConnell is a staunch defender of the provisions in the PATRIOT Act—which were recently deemed illegal by a U.S. Circuit Court judge—that have been interpreted by the intelligence agencies as carte blanche permission to collect phone records in the name of national security.
The House vote was 388-88 in favor of the USA FREEDOM Act, which would require court orders from the Foreign Intelligence Surveillance Court to obtain particular phone records from carriers and telecommunications companies, which would store the data rather than the U.S. government. Additional pressure comes from a time crunch in that Section 215 of the PATRIOT Act comes up for renewal on June 1.
“I think what’s next is for the Senate to take up USA Freedom and potentially strengthen it,” said Mark M. Jaycox, legislative analyst for the Electronic Frontier Foundation. The EFF recently pulled its support of the FREEDOM Act as it’s currently written, hoping for stronger reforms to be written into the bill, while applauding the Second Circuit court ruling.
“The Senate has less than two weeks to get its act together. Senator McConnell can prove that the Senate is a functional body under his leadership by quickly supporting, and moving, for a vote on USA Freedom,” Jaycox said.
McConnell and Senate Intelligence chairman Richard Burr in April penned Senate bill 1035 which would extend Section 215 as it currently reads through 2020, and on the day of the Second Circuit Court ruling, the two senators defended the surveillance program and called for a clean reauthorization. According to the EFF, clean reauthorization means one with no reforms. But that ignores the circuit court ruling and could potentially complicate a rebuttal of Section 215.
“Congress can’t pretend that the Second Circuit’s narrow reading of ‘relevant to an authorized investigation’ doesn’t exist. It’s likely that if Congress merely does a ‘clean’ reauthorization of Section 215, then the district court in ACLU v. Clapper will enjoin the government from using Section 215 as authorization for the call records dragnet, because the district court is bound by the Second Circuit decision,” Jaycox and colleague David Green wrote this week. “However, if a reauthorization made it clear that Congress intended to reject the Second Circuit’s narrow reading of the law, it could cause further confusion and the government could argue that Congress has fully embraced the dragnet.”
Opponents of the FREEDOM Act challenge its ability to guarantee national security and personal liberties. The EFF argues that the act needs to include stronger reforms to repair shortcomings with the FISA court, in particular around transparency and a lack of a true adversary within the court. The EFF is also concerned with the FREEDOM Act granting the government permission to collect “second hop” numbers without authorization. Instead, the EFF wants the government to apply for permission from the court for additional records.
“Automatically obtaining a ‘second hop’ is unacceptable because it sweeps in too many people’s records,” Jaycox and Greene wrote.
Additionally, it urges Congress to put language back into the FREEDOM Act that existed in previous drafts mandating that data collected about people not connected to an investigation be deleted, a higher standard be set for the use of pen register trap-and-trace devices, as well as deleting other provisions around sentencing for supporting terrorism and more.
Earlier today, Sens. Patrick Leahy of Vermont and Bob Goodlatte of Virginia, urged McConnell to move affirmatively on the FREEDOM Act.
“He should head their call, while also allowing amendments that strengthen the bill,” Jaycox said.