Data Surveillance Debate Heats Up Again in Senate

Senate Republicans are fighting reform efforts that would weaken the NSA’s powers.

The United States Capitol building in Washington DC, August 4, 2013
The United States Capitol building in Washington DC, August 4, 2013 (Jeffrey Zeldman)

Last fall, reformers of the surveillance system run by America’s National Security Agency were dealt a tough blow. After extensive negotiations between lawmakers, concessions granted from the intelligence community, agreement with telecommunications companies and a political environment in Washington that was conducive to eliminating the bulk collection of telephone metadata by the government, reform advocates were unable to defeat a Republican filibuster to proceed in the Senate. The USA Freedom Act — which would have transferred the storage of metadata from the government to private telecoms — was just two votes shy of the sixty votes needed to break the filibuster.

Undeterred, those pushing for changes in how the NSA picks up data on ordinary Americans are trying to get the issue back on the agenda. Mitch McConnell, the Republican majority leader in the Senate, has already said that he intends to debate NSA surveillance in the chamber. The House Judiciary Committee, in the meantime, has passed a revamped version of the USA Freedom Act, sending the bill to the full House of Representatives.

The subject in question is Section 215 of the USA Patriot Act which allows the FBI to request all items on an individual that are relevant to an ongoing and credible counterterrorism investigation. Over time, the NSA has sought and received the approval of the Foreign Intelligence Surveillance Court based on an expanded definition of Section 215 to collect the phone metadata of tens of millions of Americans.

Authors of the original Patriot Act have argued this is a gross infringement of how the law should be interpreted. But the George W. Bush and Barack Obama Administrations have argued it is necessary to capture communications between terrorists both within and outside the United States.

A federal circuit court recently disagreed, ruling that the NSA’s interpretation of the law went beyond what it should have been.

Assuming that the House passes the USA Freedom Act — as it did last year on a bipartisan and overwhelming vote — the measure would be sent to the Senate where it’s sure to hit the same roadblocks that killed reform efforts six months ago.

Supporters of reform will have to overcome a filibuster by a Senate Republican leadership that is intent on defending the Patriot Act. McConnell and Senator Richard Burr, the chairman of the Intelligence Committee, have their own bill that would simply reauthorize bulk data collection for another five years.

McConnell in particular is deeply convinced that permitting the collection of phone records is instrumental to keeping Americans safe from terrorist plots that may otherwise be off the government’s radar. He’s just as passionate this year as he was during last year’s debate in making sure that the investigative tools given to the government under the Patriot Act are preserved.

“According to the CIA, had these authorities been in place more than a decade ago, they would have likely prevented 9/11,” McConnell said on Thursday, referring to the September 11, 2001 terrorist attacks. He added that those authorities are “ideally suited for the terrorist threat we face in 2015.”

In other words, McConnell and his fellow national-security hawks in the Senate don’t want to erode the authority the NSA currently has. Reformers aren’t buying their argument on privacy grounds but it remains to be seen if they can be successful on the same legislation that failed to pass a year ago.