It took more than a year to hammer out the compromise that is the USA Freedom Act. Yet, last week, the legislation failed in the Senate for a second time. Now the act's fate — and the future of certain surveillance provisions in the USA Patriot Act — are far from certain. The Senate is expected to take up the matter Sunday, the day before those provisions are scheduled to expire.
The journey of the USA Freedom Act began in October 2013 when different versions of the bill were introduced in both houses of Congress in the wake of unauthorized disclosures by Edward Snowden, a former National Security Agency contractor who leaked classified documents to journalists. The disclosures included information, later declassified, about the bulk telephone metadata program conducted under the Section 215 of the USA Patriot Act, legislation that was created in response to the Sept. 11, 2001, terrorist attacks.
The intelligence community, with oversight and approval from the Foreign Intelligence Surveillance Court, used the provision to secretly collect and store Americans' call metadata from U.S. telecommunications providers. The program's purpose: To be able to later query that data — which contains time, duration and phone numbers called, but no content — on a controlled basis for links to specific foreign terrorist organizations.
Domestically, this was one of the most controversial of the surveillance programs disclosed. In January 2014, President Obama committed to ending the program and proposed establishing a mechanism that preserves the government's ability to access the data without the government storing it. The administration has since been working with Congress to negotiate reforms to Section 215 and other programs.
Section 215 reforms were included in early versions of the USA Freedom Act — the shorthand name for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act. When the House voted on the act a year ago, a significant majority approved the bill. However, privacy advocates criticized the act due to a series of last-minute changes that they said watered down intended reforms. Many of these privacy advocates then threw their support behind a Senate version of the act with more expansive surveillance reforms. When that version failed in the Senate last November by two votes, surveillance reform was pushed to this year's legislative agenda.
In mid-May, an updated House version was passed by an even larger bipartisan majority. The approach tried to carve out a middle ground by adopting some of the additional reforms and privacy protections from the previous Senate bill. But last week, that version also failed in the Senate, securing 57 of the 60 votes needed to pass.
The USA Freedom Act would end the bulk collection of records by requiring the use of a “specific selection term” to limit the information the government can request upon approval by the Foreign Intelligence Surveillance Court (except in an emergency). It would also end future government storage of the telephone metadata, which would be retained by telecommunications providers.
Regarding privacy protection, the act would implement a number of measures recommended by the independent bipartisan Review Group on Intelligence and Communications Technologies, appointed by the president to review U.S. surveillance activities following the Snowden disclosures. These measures include appointing a panel at the Foreign Intelligence Surveillance Court to advise on cases where privacy and civil liberties may be impacted, expanding the information technology companies can disclose regarding surveillance requests, expanding public reporting about surveillance programs, and allowing for challenges and periodic review of national security nondisclosure orders.
Regarding security, the bill includes provisions to increase the maximum prison sentence from 15 to 20 years for providing material support to terrorism and to close an intelligence collection gap by giving the government 72 hours to track foreign terrorists when they initially enter the United States while it seeks domestic surveillance authority. It would also extend the Patriot Act provisions that otherwise would expire on June 1, allowing surveillance of “lone wolf” suspects who are not linked to foreign terrorist groups and the use of “roving wiretaps” on targets who switch communications devices.
Strong security supporters argue that the USA Freedom Act will provide enhanced security by giving intelligence agencies clearer and additional surveillance capabilities. Other supporters believe the bill will create greater vulnerabilities by slowing down the ability to lawfully acquire necessary information to aid counterterrorism efforts.
Some privacy advocates argue that the act will increase privacy protections by ending the government's bulk collection and storage of Americans' telephone records. Other advocates believe the act will diminish privacy protections by codifying government legal standing to collect such records, in particular since a federal appellate court opinion recently questioned the legality of the Section 215 telephone program.
All of the above may turn out to be true if some version of the bill eventually passes. The USA Freedom Act is a bill of mutual concessions — the very definition of a compromise. It introduces a series of measures to strengthen protection and manage risk for both American civil liberties and national security. It contains checks and balances to safeguard privacy, add and clarify surveillance parameters, and institute additional transparency, accountability and oversight mechanisms. The act does not “balance” privacy and national security nor is it clear that any legislation can credibly do so. There is no monolithic view of what such a balance should look like.
Any potential resolution of the USA Freedom Act will come down to the wire. The Senate could still pass the measure unchanged and prevent the relevant Patriot Act authorities from expiring. But if the Senate passes its own version of the bill, the House will still need to approve those changes after returning from recess on June 1, the day those Patriot Act surveillance authorities are set to expire.
Whatever the legislative solution may be, the clock is seriously and urgently ticking.
Beaghley, a senior international and defense policy analyst at the nonprofit, nonpartisan RAND Corporation, was director for Intelligence and Information Security Issues on the National Security Council staff.
This commentary originally appeared on The Hill on May 29, 2015. Commentary gives RAND researchers a platform to convey insights based on their professional expertise and often on their peer-reviewed research and analysis.