- This week, the full Senate is scheduled to vote on the USA Freedom Act; work on the legislation could begin as early as Tuesday.
- The legislation is designed to place stricter limits on NSA surveillance — especially its controversial phone records program.
- The legislation will need support from 60 Senators to pass the upper chamber.
The lame duck Senate is going to try to rein in NSA spying
What the USA Freedom Act does
The original version of the USA Freedom Act, introduced by Rep. James Sensenbrenner (R-WI) in October 2013, had a number of provisions on the wish lists of civil liberties groups. But by the time the legislation was approved by the House of Representatives in May 2014, it had been watered down so much that leading civil liberties groups opposed it.
So, in July, Sen. Patrick Leahy (D-VT) introduced his own version of the USA Freedom Act in the Senate. It is less radical than the original USA Freedom Act, but places more limits on the NSA than the legislation approved by the House.
Debate over the USA Freedom Act has focused on the best way to rein in bulk collection of Americans’ phone records. The Senate version of the legislation requires any collection of phone records to focus on a suitably narrow “selector” — a search term that identifies an individual, phone line, or other specific entity.
The Senate bill would also take some other steps to make the NSA's activities more transparent and accountable. Right now, when the government asks the secretive Foreign Intelligence Surveillance Court to approve surveillance activities, there is no one around to present opposing arguments. The Senate bill would change that by creating several new positions for public advocates who could participate in FISC proceedings.
The bill would also require the government to disclose significant FISC opinions (though the government could decline to publish them if it decides doing so would damage national security) and to publish detailed statistics about the extent of domestic spying activities.
“The American people are wondering whether Congress can get anything done,” said Sen. Patrick Leahy, the lead sponsor of the legislation, “The answer is yes. Congress can and should take up and pass the bipartisan USA FREEDOM Act, without delay.”
Who favors the legislation?
The legislation is being pushed forward by civil liberties groups and technology companies.
Civil liberties groups such as the American Civil Liberties Union and the Electronic Frontier Foundation favor the legislation because it would place new limits on bulk surveillance of Americans.
The legislation also enjoys broad support from the technology sector. Their support is driven in part by concerns that aggressive NSA surveillance could hurt their bottom line. That’s because customers outside the United States are wary of entrusting American internet companies with the data if the US government has easy access to it.
The legislation enjoys the support of the Obama administration, as well as the editorial boards of the New York Times and the Washington Post. A few Republicans also support the proposal, including the firebrand Sen. Ted Cruz (R-TX).
Who opposes the bill?
Advocates at both extremes of the surveillance debate oppose the bill. From the pro-surveillance side, former NSA director Michael Hayden and former attorney general Michael Mukasey recently blasted the bill as “NSA Reform That Only ISIS Could Love.” At the opposite end of the political spectrum, some hard-core civil libertarians are opposing the bill for being too soft on the NSA.
Interestingly, Kentucky’s two Republican Senators, Rand Paul and majority leader Mitch McConnell, oppose the bill for opposite reasons. Paul thinks it goes too far, while McConnell believes it ties the NSA’s hands too much. Sen. Saxby Chambliss (R-GA), the top Republican on the Senate intelligence committee, agrees with McConnell.
The bill will need 60 votes to overcome an expected filibuster.
But much will depend on the amendment process. Majority Leader Reid is planning to open the floor for amendments, and so advocates on both sides of the issue will be offering proposals to make the bill either stronger or weaker.
Key figures such as Sen. Dianne Feinstein (D-CA) — a NSA defender who says she’s “not necessarily” opposed to the bill — and Sen. Ron Wyden (D-OR) — a critic of the agency — are expected to offer amendments. Amendments that gain supporters on one side of the issue may lose supporters on the other.
What happens next?
If the bill passes — and that’s a big if — its provisions will need to be reconciled with the House version. Many civil liberties groups viewed the House version as so watered down as to be worthless. The two houses of Congress need to iron out their differences before the Congress ends in early January.
If that doesn’t happen, then the issue is almost guaranteed to come up again in the new year. A key provision of the Patriot Act is scheduled to expire next summer, giving intelligence hawks who might other oppose legislation a reason to negotiate. So if Congress doesn’t pass legislation in the last six week of 2014, it will probably do so in the first six months of 2015.
