Patriot Act Deadline Threatens to Splinter NSA Reformers

Stinging from defeat, some privacy advocates want to let parts of the Patriot Act sunset next year. But not everyone is ready to take the plunge.

National Journal
Nov. 25, 2014, midnight

Pri­vacy ad­voc­ates, fa­cing an up­hill battle in a Re­pub­lic­an-con­trolled Con­gress next year, will have to make a dif­fi­cult choice.

Some ar­gue that their best shot to curb the Na­tion­al Se­cur­ity Agency’s powers will be to kill core pro­vi­sions of the USA Pat­ri­ot Act al­to­geth­er. But oth­er re­formers aren’t ready to take the post-9/11 law host­age.

The de­bate over wheth­er to let the Pat­ri­ot Act pro­vi­sions ex­pire in June threatens to splinter the sur­veil­lance-re­form co­ali­tion. If the tech in­dustry, pri­vacy groups, and re­form-minded law­makers can’t co­alesce around a strategy soon, they may have little hope of rein­ing in the sur­veil­lance state.

And with out­rage over the Snowden rev­el­a­tions fad­ing and fear over the Is­lam­ic State rising, the push for re­form ap­pears to have already lost its mo­mentum.

The NSA crit­ics are still lick­ing their wounds after Sen­ate Re­pub­lic­ans blocked the USA Free­dom Act last week. The bill, au­thored by Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, would have pro­hib­ited the gov­ern­ment’s carte blanche col­lec­tion of U.S. phone metadata—the num­bers and time stamps of phone calls but not their ac­tu­al con­tents.

The bill would have also ex­ten­ded key pro­vi­sions of the Pat­ri­ot Act for two years, in­clud­ing the con­tro­ver­sial Sec­tion 215, which the NSA uses to jus­ti­fy its phone-re­cord col­lec­tion pro­gram. But that wasn’t enough for Minor­ity Lead­er Mitch Mc­Con­nell, Sen. Marco Ru­bio, and most mem­bers of the Re­pub­lic­an Caucus, who warned that the bill would have helped ter­ror­ists kill Amer­ic­ans.

“This is the worst pos­sible time to be ty­ing our hands be­hind our backs. The threat from ISIL is real,” Mc­Con­nell said in a state­ment, us­ing an al­tern­at­ive name for the Is­lam­ic State.

With the Re­pub­lic­ans win­ning the Sen­ate, Mc­Con­nell is about to be­come the ma­jor­ity lead­er, giv­ing him con­trol over the cham­ber’s agenda. Giv­en his ag­gress­ive last-minute whip­ping against the Free­dom Act, pri­vacy ad­voc­ates say it is dif­fi­cult to ima­gine him push­ing any­thing more than curs­ory changes to the NSA.

But with so many ways to block le­gis­la­tion in Con­gress, it’s al­ways easi­er to stop something than to pass it. That real­ity has already led some pri­vacy ad­voc­ates to want to kill any reau­thor­iz­a­tion of the Pat­ri­ot Act that doesn’t in­clude sub­stan­tial re­forms to the gov­ern­ment’s spy­ing powers—a view­point that has already spawned a #Sun­set215 hasht­ag.

They’re hop­ing to use the lever­age of the loom­ing dead­line to at least force the Re­pub­lic­an lead­ers to of­fer up some real changes.

“It looks like the Re­pub­lic­an lead­er­ship in the Sen­ate is very res­ist­ant to any re­form, and that is true in the House as well,” said Rep. Zoe Lof­gren, a lead­ing ad­voc­ate of sur­veil­lance re­form. But, she ar­gued, the rank-and-file mem­bers in both parties re­main deeply skep­tic­al of NSA spy­ing.

“The lead­ers want one thing, and the mem­bers want an­oth­er,” the Cali­for­nia Demo­crat said in an in­ter­view. Lof­gren ar­gued that to se­cure enough votes to re­new the Pat­ri­ot Act pro­vi­sions, con­gres­sion­al lead­ers will have to in­clude a pack­age of re­forms. While she thinks that block­ing the reau­thor­iz­a­tion should be on the table, she warned that it would still leave oth­er NSA ab­uses un­ad­dressed.

Sen. Ron Wyden, an Ore­gon Demo­crat, also said he wants to use the loom­ing Pat­ri­ot Act dead­line as lever­age for stronger changes.

“The June ex­pir­a­tion of sev­er­al of these pro­vi­sions gives both sides of this de­bate a strong in­cent­ive to come to the table and fi­nally end over­reach­ing pro­grams that vi­ol­ate the pri­vacy of mil­lions of Amer­ic­ans without mak­ing our coun­try safer,” he said in a state­ment.

But not every­one who has called for lim­its on NSA spy­ing is ready to let the Pat­ri­ot Act ex­pire.

Rep. Jim Sensen­bren­ner, the chief au­thor of the ori­gin­al Pat­ri­ot Act, be­came a sharp re­form ad­voc­ate, ar­guing that the NSA is ab­us­ing the law. And in the past, he has re­peatedly warned that Con­gress might block a reau­thor­iz­a­tion bill that doesn’t rein in the agency.

But with the dead­line fast ap­proach­ing, Sensen­bren­ner, who also au­thored the ori­gin­al draft of the Free­dom Act, ap­pears to be shy­ing away from that all-or-noth­ing rhet­or­ic.

“While it’s pos­sible those on the pri­vacy side of the de­bate will opt for sun­sets and those on na­tion­al se­cur­ity side will lever­age tur­moil in Middle East, Con­gress­man Sensen­bren­ner will con­tin­ue to push for sens­ible re­form,” an aide to the Wis­con­sin Re­pub­lic­an said in a state­ment. “Re­form is ne­ces­sary, but what it will look like is un­cer­tain.”

The tech in­dustry ap­pears reti­cent to jeop­ard­ize the Pat­ri­ot Act re­new­al, too. Face­book, Google, and oth­er Sil­ic­on Val­ley gi­ants have been valu­able part­ners in the anti-sur­veil­lance move­ment, ar­guing that NSA spy­ing hurts their busi­ness. But those com­pan­ies may be re­luct­ant to at­tach their names to any ef­fort to let le­gis­la­tion ex­pire that the in­tel­li­gence com­munity claims is vi­tal to na­tion­al se­cur­ity.

Jes­sica Her­rera-Flanigan, a lob­by­ist for Re­form Gov­ern­ment Sur­veil­lance, a co­ali­tion of tech com­pan­ies, ar­gued that the re­formers can get more Re­pub­lic­an sup­port just by go­ing through the tra­di­tion­al com­mit­tee pro­cess. It’s too soon to give up on the Free­dom Act and fo­cus on killing the Pat­ri­ot Act, she said.

“We should start with [the Free­dom Act] be­cause it has con­sensus around it,” she said. “We should not start from scratch.”

No one in the NSA re­form co­ali­tion thinks let­ting Sec­tion 215 sun­set will solve all of their con­cerns about gov­ern­ment sur­veil­lance. But pri­vacy ad­voc­ates gen­er­ally see its ex­pir­a­tion as a use­ful bar­gain­ing chip, and, if neither side blinks, a worth­while step for­ward.

Tech and many pro-re­form law­makers, however, may find that too risky a gamble.

Leahy, the au­thor of the Free­dom Act, didn’t say which side of the de­bate over the Pat­ri­ot Act re­new­al he will fall on.

“The bill I pro­posed was a good bi­par­tis­an bill,” Leahy told re­port­ers in the Cap­it­ol last week. “People are go­ing to wish they had that this time next year.”

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