NSA surveillance reform in air as lawmakers threaten Patriot Act renewal filibuster
Notably, the National Security Agency won’t be changing its surveillance practices on its own despite the ruling by the Second Circuit Court of Appeals, which found that the NSA’s phone metadata collection program is not permitted by the USA Patriot Act, which the agency has leaned on repeatedly for justification.
Speaking at George Washington University, NSA Director Admiral Michael Rogers said the agency is looking for Congress to decide just what it will be allowed to do in terms of the controversial intelligence gathering program.
“You’ll be seeing play out in Congress in the next few weeks a discussion about what’s the right way ahead here,” Rogers said, as quoted by The Hill.
“I always remind people, in the end, the National Security Agency executes a legal framework,” he said. “That legal framework is developed by our Congress and tested by the courts. That’s exactly the way the Constitution works.”
However, he did say that if Congress decides to rein in the collection of telephone metadata – information such as when a call was made, how long it lasted and to whom it involved – lawmakers should not place too many burdens on the NSA’s ability to access the information it seeks.
“If it’s a process that takes weeks and months, that really doesn’t generate the kind of value” the intelligence community wants to see, he said, according to the Wall Street Journal.
There are currently a couple of options Congress is considering regarding the NSA’s surveillance powers. One option would be to simply renew the Patriot Act provisions that are set to expire on June 1 without amending them at all. This is the preferred path for Senate Majority Leader Mitch McConnell (R-Ky.), though it’s unclear how doing so would permit the NSA to continue gathering telephone metadata in light the latest federal ruling.
The court said that the NSA could continue this bulk collection method if explicitly authorized by Congress, meaning lawmakers would have to insert that authority into any straight renewal.
— Ron Wyden (@RonWyden) April 8, 2015
Senate Minority Leader Harry Reid (D-Nev.) criticized McConnell for his position on Monday.
“My friend, the Majority Leader, keeps talking about extending the program for five and a half years,” Reid said on the Senate floor, referencing McConnell, the Intercept reported. “How can you reauthorize something that’s illegal? You can’t. You shouldn’t.”
“Extending an illegal program for five and a half years? That is not sensible. What should happen is that we should move forward and do something that is needed here–and that is, do it all over again.”
Other lawmakers have also criticized such an approach, with two prominent civil liberties advocates threatening to filibuster any attempt to pass a clear renewal of the Patriot Act.
One of them, Rand Paul (R-Ky.), who is also running for the Republican nomination for president, said he will try and stop Congress from reauthorizing the law without changes.
“I'm going to lead the charge in the next couple of weeks as the Patriot Act comes forward,” he said to the New Hampshire Union Leader. “We will be filibustering. We will be trying to stop it. We are not going to let them run over us. And we are going to demand amendments and we are going to make sure the American people know that some of us at least are opposed to unlawful searches.”
— The Hill (@thehill) May 11, 2015
Meanwhile, Democrat Ron Wyden of Oregon also said he would filibuster a clean renewal.
“I'm tired of extending a bad law,” Wyden told MSNBC recently. “If they come back with that effort to basically extend this for a short term without major reforms like ending the collection of phone records, I do intend to filibuster.”
The other option currently on the table is to pass the USA Freedom Act, which would bar the collection of telephone metadata. Instead, the NSA would have to acquire a warrant every time it wanted to access phone records, which would be held by telephone companies. The bill would also reform the Foreign Intelligence Surveillance Court (FISA Court) by setting up a five-person panel that would offer advise when intelligence agencies are seeking new interpretations of existing law.
Though the Freedom Act has garnered some support from privacy groups, such as the Electronic Frontier Foundation, Paul and Wyden have been critical of it for not going far enough. It’s unclear if they would also resist granting this bill a vote in the Senate.
The House of Representatives is scheduled to vote on the Freedom Act on Wednesday, where it is expected to pass.
Other groups, like the American Civil Liberties Union, continue to push lawmakers to adopt tougher restrictions on the NSA. In a recent post, the ACLU urged Congress to include provisions that would eliminate the surveillance of individuals with no connection to terrorism. Currently, the bill would force the NSA to give telephone companies searchable terms in order to collect the data it wants, and the ACLU said this could still lead to abuse by intelligence officials.
The group also wants the proposed FISA Court advisory panel to have at least one individual who will specifically advocate for privacy protections, and it wants to see guidelines implemented that would require the purging of information collected that’s not related to terrorism.