The following was co-authored by R Street Outreach Manager Nathan Leamer.
As most anyone interested now knows, Congress last night allowed Section 215 of the PATRIOT Act to sunset. This expiration appears to be a short-lived symbolic victory for privacy advocates, as the Senate is poised to move forward to restart the programs in question.
The temporary lapse of Section 215 was primarily the result of Senate Republican leadership’s continued unpopular  effort to preserve the mass surveillance status quo, most notably the bulk collection of phone records. The temporary expiration was aided by the floor maneuverings of the National Security Agency critic and Republican presidential candidate, Sen. Rand Paul , R-Ky. While able to force an expiration of the invasive programs, Paul was unable to get a vote on any of his proposed amendments  geared to strengthen privacy protections.
This means there are, right now, two options before the Senate. Senators could concur with the House-passed reform known as the USA FREEDOM Act, a decision that would end bulk collection of phone records, institute a special advocate for civil liberties on the secret Foreign Intelligence Surveillance (FISA) Court and make the intelligence community more accountable to Congress and the public.
That first option will disappoint activists who wanted stronger reform than the USA FREEDOM Act provides. But the second option is much worse: NSA apologists (we sometimes call them “the security hawks”) could use the USA FREEDOM Act as a vehicle to attach amendments introduced by Majority Leader Mitch McConnell, R-Ky., that would significantly weaken and delay the reforms. These amendments are poison pills that would force many privacy and tech groups to rescind their support.
Here is a brief overview of the four amendments in question, which are presented below in order of how negatively they would affect the USA FREEDOM Act:
- Amendment #1450, delay transition period from six to 12 months: This amendment would unnecessarily extend the implementation period to a year.
Current USA FREEDOM Act: The bill requires the government to implement the required reforms in 180 days.
Why oppose this amendment? It’s entirely unnecessary. NSA Director Mike Rogers wrote to Sen. McConnell  to assure him that there are “no technical or security reasons” why changes to the NSA’s program could not be brought online within the 180-day period set by the reform bill. Delaying the end of the bulk collection of phone records is simply a continuation of a failed and invasive policy.
- Amendment No. 1451, replace amicus provision with weakened version: This amendment would water down significantly the amicus curiae provision by removing the transparency requirement that the FISA Court provide written notice about when and why it chooses not to appoint an amicus. Additionally this amendment would limit the amicus’ access to relevant information and responsibilities before the court.
Current USA FREEDOM Act: The FISA Court must appoint an amicus curiae (a “friend of the court”—a kind of independent special advocate) to serve in any case that “presents a novel or significant interpretation of the law,” or issue a written finding that an appointment is not appropriate. The amicus would provide the court with legal arguments that advance the protections of privacy and civil liberties, information relating to intelligence collection or technology and any other relevant legal arguments. The amicus also would have access to all legal or other materials the court deems relevant to his or her duties.
Why oppose this amendment? The amicus provision in the House-passed bill is already crafted to give the FISA Court enormous discretion in deciding when and how to call upon an amicus. There is no evidence from the intelligence community, or anyone else, that the House-passed provision would harm national security or interfere with the FISA Court’s ability to fulfill its function.
- Substitute Amendment No. 1449, complete substitute with a notice requirement for data retention: This amendment would require phone and Internet companies to give the attorney general at least 180 days advance notice if they plan to change their data-retention policies when such changes would result in holding customer records for less than 18 months.
Current USA FREEDOM Act: The bill does not currently include any measure regarding data retention of private companies. The telecom companies in question already hold such data as part of their normal course of business, sometimes for years.
Why oppose this amendment? It’s entirely unnecessary, especially given Director of National Intelligence James Clapper’s recent statement  that new data-retention requirements are not needed. In addition, requiring private businesses to alert the government before they change internal data-retention policies is harmful to innovation, threatens privacy and could be interpreted as a prelude to a government requirement that companies keep records for a specified period of time. What is to keep the office shredder from being made illegal?
- Substitute Amendment No. 1452, complete substitute with a removal of declassification of FISA Court opinion requirement: This substitute amendment would contain all the above amendments and remove the requirement to declassify significant FISA court opinions:
Current USA FREEDOM Act: The bill currently requires the director of national intelligence to review all significant FISA Court decisions and either declassify and publicly release the opinions or release summaries of the opinions that would be sufficient to inform Americans and Congress of their general context, the legal issues in question and how the court ruled.
If this amendment passed, the DNI no longer would be required to conduct a declassification review of FISA Court decisions or release any new information about them.
Why oppose this amendment? This accountability provision is one of the most essential aspects of the USA FREEDOM Act. Releasing significant FISA Court decisions is essential to ensure the government and the FISA Court are interpreting the surveillance authorities as Congress intended. It also is key to combat increasing government reliance on secret law, which has been used to justify massive spying programs that Congress did not intend.
Not only would passage of these amendments be problematic for outside groups , but they also are viewed as untenable  by House leadership, who repeatedly have said they will not accept a weakened version of the USA FREEDOM Act.
It is time for the Senate to move forward on the House-passed USA Freedom Act and embrace substantial NSA reform. Passage would allow legislators to move forward and address the many other issues facing our Fourth Amendment privacy protections.
- “unpopular”: http://www.nationaljournal.com/tech/patriot-act-rand-paul-expire-sunset-section-215-20150531
- “Sen. Rand Paul”: http://www.politico.com/story/2015/05/gop-senators-tear-into-paul-118475.html?ml=po
- “proposed amendments”: http://www.paul.senate.gov/news/press/sen-rand-paul-to-offer-amendments-to-usa-patriot-act-extension-
- “wrote to Sen. McConnell”: https://s3.amazonaws.com/s3.documentcloud.org/documents/2085518/letter-from-nsa-director-michael-s-rogers-to.pdf
- “Director of National Intelligence James Clapper’s recent statement”: http://www.leahy.senate.gov/imo/media/doc/5-12-15%20AG.DNI%20Response.pdf
- “outside groups”: https://cdt.org/insight/coalition-letter-opposes-bills-aimed-at-patriot-act-reauthorization/
- “untenable”: http://blogs.rollcall.com/218/mccarthy-senate-pass-usa-freedom-act-soon-possible/