On May 23, the U.S. Senate came up three short of the 60 votes necessary to consider the USA Freedom Act, legislation designed to rein in the bulk collection of phone metadata by the National Security Agency and to provide more transparency in surveillance programs.
“Sadly, the Senate has rejected, at least temporarily, the opportunity to debate legislation that would begin to restore some of the privacy rights and civil liberties lost in the aftermath of 9/11, while still providing the intelligence community and law enforcement with the ability to gather targeted information to help keep us safe,” said TCP President Virginia Sloan in a press release.
“Despite overwhelming bipartisan support for the bill in the House, the all-or-nothing attitude of a minority of the Senate will keep the American people more in the dark about the secretive Foreign Intelligence Surveillance Court, while also letting a frequently used investigative tool expire,” she said.
The USA Freedom Act would have ended the bulk collection of Americans’ records – including records collected under Section 215 of the Patriot Act, the FISA pen register statute, or National Security Letters – but would have provided an alternative way for intelligence agencies to acquire more narrowly tailored information from communication providers if the FISA court found a reasonable suspicion that the data would contribute to a terrorism investigation. It would have also increased transparency by allowing communications providers to disclose in more detail the number of surveillance orders they receive.
In addition, the legislation would have required the FISC to appoint a panel of security-cleared lawyers to advice the court in cases involving novel or significant interpretations of law, and could be appointed in such cases to offer input regarding privacy and civil liberties concerns. The legislation also would have required the FISC to declassify significant opinions, or prepare a summary for the public if declassification is not possible.
The Constitution Project released a report in May, 2014 urging the appointment of special advocate by the FISC to represent the public in certain cases, and setting forth requirements for making the advocate effective.
The House adopted the legislation on a vote of 338 to 88. A bipartisan majority of the Senate voted to consider the legislation, but came up three votes short of clearing a procedural hurdle. Only 45 senators voted in favor of a simple two-month extension of existing law, 15 short of the number necessary to break a filibuster.
Section 215 of the Patriot Act, which the NSA claims gives it the authority to collect phone records on millions of Americans, sunsets at the end of the month. Two additional provisions of the Patriot Act, one authorizing “roving” wiretaps to allow law enforcement to keep track of individuals using “burner” phones, the other to allow intelligence agencies to follow “lone wolf” terrorists, will also expire.
Sponsors of the legislation have indicated the House will not support a short-term extension or a watered-down version of the bill. The Department of Justice said government agencies needed to begin shutting down collection programs immediately to meet the expiration deadline. The Senate is scheduled to return on May 31.