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The Senate deals a stunning rebuke to the surveillance state

Last night, the Senate delivered a stunning rebuke to the NSA and the other surveillance agencies. By refusing to act, they in effect voted to allow parts of the PATRIOT Act to expire, on which the FBI and NSA (illegally) rely to conduct mass metadata dragnets on Americans. This is an abhorrent outcome to national-security authoritarians, but they played their part in making it more likely to happen. This is a partial story of how it came about.

Section 215 of the PATRIOT Act, the so-called “business records” provision, dates from immediately after 9/11. It has been used since then, without the knowledge or consent of most of Congress, to justify mass metadata dragnets, including a phone metadata dragnet proven to exist by documents leaked by Edward Snowden in 2013. These metadata dragnets under Section 215 are a small part of the NSA’s overall surveillance activities; Internet and other content dragnets, which take in all the communications of whole countries and also “incidentally” include the communications of millions of Americans, were justified under other provisions of law, and so will continue.

Last fall, the USA FREEDOM Act of 2014 failed to pass in the Senate, which was deeply disappointing many surveillance activists who had worked hard for it. The reaction of some – notably CDT, OTI and Access – was to roll up their sleeves, try again in the new Congress, and work out a text that they and interested legislators and the intelligence community and the administration could come to agreement on. They reintroduced the USA FREEDOM Act of 2015 in March. It was on balance a weaker reform than the 2014 bill, reflecting a Congressional leadership that was more sympathetic to the NSA. It included, among other new measures, increased sentences for material support for terrorism. It passed the House on May 13, by 338 votes to 88. The 88 who voted against it were almost all surveillance reformers, and the more authoritarian members voted for it.

Why was that? Well, the USA FREEDOM Act, despite being touted in the press as reform, was never especially popular in the surveillance reform community. It would have reformed Section 215, but in a token way whose practical effects on actual NSA data-gathering on the ground were likely to be minimal. It would also have reauthorized it for several years, which made long-time principled opponents of the PATRIOT Act very uncomfortable. For that reason, after the bill failed in fall 2014, some organizations coalesced around a different strategy called “Sunset215.” The core groups – X-Labs, the Sunlight Foundation and Restore The Fourth, BORDC, PCCC, FreedomWorks, the Cato Institute and the Campaign for Liberty – adopted a name, the “Civil Liberties Coalition”, and our coalition steadily expanded to include a huge array of organizations from both left and right. Our strategy was to get reintroduced, with bipartisan support, the much stronger Surveillance State Repeal Act, which would show what reforms were needed; and to focus not on reforming Section 215, but on having it lapse on schedule at midnight on May 31.

Remarkably, despite the conventional wisdom six months ago that a sunset would never happen, that looks now to be by far the most likely outcome.

Part of what happened here was that the 2nd Circuit Court of Appeals ruled on May 14 that Section 215 had never authorized mass metadata dragnets. If reauthorized unchanged, the unanimous opinion said, the programs would end; if Congress wanted the programs to continue, they would have to change Section 215 to authorize them explicitly. This ruling changed the calculus for the administration and the intelligence community. It now looked as if the best option was not Senator McConnell’s preferred strategy of straight reauthorization without change or reform. Instead, they started to advocate adoption of the USA FREEDOM Act – with, in the end, even the CIA weighing in in support of it. There would be token reforms, but USA FREEDOM would provide stronger Congressional authorization for mass surveillance than the existing text of Section 215. It appears that this pressure had an effect, reducing support in the Senate for straight reauthorization, and nearly unifying the Democratic caucus in the Senate around the USA FREEDOM Act.

At the same time, our Civil Liberties Coalition was working hard generating hundreds of thousands of calls to Congress, and building the credibility of the argument for letting Section 215 lapse. We tapped into a deep sense of unease in the country with the whole project of mass surveillance – a sense that after 9/11 we had, as a country, gone off track, and needed to get right with the Constitution. That in turn gave anti-surveillance legislators – like Mark Pocan and Thomas Massie in the House, and Rand Paul in the Senate – the support they needed for a strong stand on this issue.

The Senate has been headed for a recess that would last until June 1, after the PATRIOT Act provisions expire. Last night, after midnight, these provisions finally came up for a Senate vote. McConnell placed the USA FREEDOM Act first on the agenda. 42 Senators voted against cloture. That 42 represented the more authoritarian Republicans in their 55-strong caucus, for whom even token reform was intolerable – and also Senator Paul, who, like the 88 in the House, felt that USA FREEDOM didn’t go far enough. 12 reformist Republicans voted for cloture, but that wasn’t enough; the final vote count was 57 in favor, and they needed 60.

So far, McConnell’s plan was working; his idea was that with USA FREEDOM out of the way, the Senate would agree to a two-month reauthorization of Section 215 in order to get home to their districts for the recess, and then he could lean on the House to ensure that any reforms were as empty as possible. But then his reauthorization vote also failed, by the substantial margin of 45 votes for to 54 votes against. The Democrats and several reformist Republicans voted No.

That’s when things went awry for the surveillance defenders.
Desperately, McConnell offered shorter and shorter renewals, only to have them blocked by objections from Senator Rand Paul and others. In the end, the only thing he could control was the Senate calendar, so he called for the Senate to reconvene at 5pm on May 31, to give them another chance to prevent the sunset of these PATRIOT Act authorities.

There is only one, remote possibility that will prevent sunset now. If McConnell throws his support behind the USA FREEDOM Act, and finds a few surveillance opponents willing to hold their noses to vote for it, then the Senate and House and White House will have all come to agreement before a sunset occurs. There would be a technical lapse of less than a day, owing to procedural limitations, but the legislative avenues to prevent lapse would have been successfully closed off. However, McConnell has spent months arguing that the USA FREEDOM Act is dangerous and unpatriotic. So we will see next week how unscrupulous, exactly, he is prepared to be.

Even now, some press outlets are misunderstanding what happened last night as a failure for surveillance reformers. It was nothing of the sort. The lapse of Section 215 is far more reform than most people could imagine happening six months ago. But last night, the billion-dollar three-letter agencies got a whipping from a few motivated legislators and a raggle-taggle band of civil liberties true believers. It’s an incredible story.

—10:00pm EST: UPDATED to more clearly explain what happens if USA FREEDOM passes.

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