Tag Archives: patriot act

Three Provisions of the PATRIOT Expire; Senate to Vote on USA FREEDOM Act This Week

*Edited to include a link to the Center for Democracy and Technology (CDT) in-depth analysis of Senator McConnell’s proposed amendments to the USA FREEDOM Act*

Today, three key provision of the PATRIOT Act expired, including Section 215, known as the “library records” or “business records” provision.  While the Senate voted 77-17 on late Sunday evening — just hours prior to the midnight expiration of Section 215 and other provisions — to move forward with a vote on the USA FREEDOM Act, a final vote will not come until later this week due to Senate rules requiring additional time for debate.  Senator Paul’s (R-KY) earlier filibuster of the USA FREEDOM Act, which he argued did not go far enough in protecting privacy and civil liberties, delayed the process enough to result in at least temporary sunset of three provisions of the PATRIOT Act.

Section 215 has been used by the National Security Agency (NSA) to conduct mass surveillance, including bulk collection of phone metadata.  The Second Circuit recently ruled that this bulk collection exceeded the authority granted by Section 215.

While the Senate will hold a vote on the USA FREEDOM Act later this week, passage in its current form is not assured.  Majority Leader McConnell (R-KY) has introduced four amendments, all of which would weaken the USA FREEDOM Act.  These amendments would 1) extend the transition period for agency compliance with the USA FREEDOM Act from 6 months to 12 months; 2) replaces the section creating an amicus curiae to the FISA court with one that is less effective; 3) substitute the USA FREEDOM Act in its current form, including a new notice requirement for data retention for companies that intend to retain call detail records for less than 18 months and; 4) substitute the USA FREEDOM Act with all of the above changes and also removes the provision regarding declassification of FISA court opinions.  The third and fourth amendments are complete substitutes of the House-passed version of the USA FREEDOM Act, essentially re-writing the bill with substantial amendments.  CDT has a great in-depth explanation of each amendment here.

Should any of these amendments be accepted, the House of Representatives would need to accept these changes before the bill can be sent to President Obama.  A number of Representatives have already criticized the USA FREEDOM Act as not going far enough to protect privacy and civil liberties and Senator McConnell’s amendments could be rejected in the House.

Efforts to weaken the USA FREEDOM Act, such as those advanced by Senator McConnell, should not be accepted.  The USA FREEDOM Act should be considered to be the bare minimum in a series of reforms to the NSA’s surveillance practices and efforts to change the bill should focus on strengthening, rather than weakening, protections for privacy.  Now that Section 215 and other provisions of the PATRIOT Act have expired, Congress must carefully consider what authorities it wants to grant the NSA and other federal agencies.  Congress is no longer considering extension or reauthorization of existing powers, but will be granting authority to federal agencies once again.  In doing so, ARL urges members of Congress to protect privacy and civil liberties in a meaningful way and ensure that the key protections advanced by the USA FREEDOM Act are not diminished.

Section 215 “Library Records” Provision Set to Expire on June 1

Last week, Senator Rand Paul (R-KY) engaged in a filibuster designed to stall consideration of a vote on the USA FREEDOM Act as well as Senator McConnell’s bill which would grant a clean reauthorization of certain expiring provisions of the PATRIOT Act, including the controversial Section 215, also known as the “library records” or “business records” provision.  Section 215 has been used by the National Security Agency (NSA) for bulk collection of phone metadata, a program which was recently ruled unlawful by the Court of Appeals for the Second Circuit.

The filibuster had bipartisan support and, due to its timing, could result in expiration of Section 215 which will sunset beginning on June 1.  In the early hours of Saturday, May 23, just before the Senate adjourned, a vote to move forward with the USA FREEDOM Act (a bill which ARL has supported) failed, as did McConnell’s reauthorization bill.  While Senator McConell’s bill initially proposed reauthorization for 5 years, he advanced attempts to reauthorize PATRIOT Act provisions for much shorter periods of two months, eight days, five days, three days and two days, ostensibly to give the Senate more time to craft a compromise on surveillance reform before expiration of Section 215 and other provisions.  Each of these attempts failed.

Senator McConnell is expected to call for another vote on Sunday, May 31, hours before provisions of the PATRIOT Act will expire.  It is unclear whether such a vote would be held for short-term reauthorization or on the USA FREEDOM Act, which fell just three votes shy of the 60 needed for cloture. Passing the USA FREEDOM Act in its current form, which has already been approved by the House of Representatives, is the only option that might completely avoid a sunset of Section 215 and other provisions. Even if Senator McConnell collects enough votes to approve a short-term reauthorization, it does not appear that the House will be able to hold a vote on such reauthorization. Likewise, if any amendments are made to the USA FREEDOM Act, the House would need to vote to approve these amendments. Because the House of Representatives is not scheduled to return until the afternoon of June 1, should a vote be required in the House, Section 215 as well as several other provisions will likely expire, even if it is for just a short period.

Reauthorization following a sunset of Section 215 would be therefore be seen as a new grant of authority rather than extension of existing authority.  Politically, this distinction could be an important one and policymakers must carefully consider whether a new grant of authority to allow broad surveillance practices is warranted and, if so, what privacy and civil liberty protections are in place.  ARL encourages members of Congress to protect privacy and civil liberty and ensure that meaningful reform of current surveillance practices are achieved in any new grants of authority.

Senator Rand Paul (R-KY) Filibusters USA FREEDOM Act; Future of Section 215 Uncertain

On Wednesday, May 20, 2015, Senator Rand Paul (R-KY) took the Senate floor to filibuster the USA FREEDOM Act.  While the Senate was considering a bill on trade promotion authority or “fast track” legislation, Senator Paul’s filibuster was intended to stall consideration of a vote of the USA FREEDOM Act.  Senate procedural rules mean that the Senate would not be able to take a procedural vote on the USA FREEDOM Act or Senator McConnell’s bill to allow clean reauthorization of Section 215 until at least Saturday, unless there is an agreement to shorten the addition 30 hours of debate permitted.

Senator Paul has been a sharp critic of government surveillance, including under Section 215 of the PATRIOT Act which is also known as the “library records” or “business records” provision.   This provision has been relied upon by the National Security Agency (NSA) to engage in bulk collection of telephone metadata, though the Second Circuit recently ruled that such bulk collection was unlawful under Section 215.  While the USA FREEDOM Act provides for new safeguards, Senator Paul has opposed the extension of Section 215 and other provisions of the PATRIOT Act.  Although he opposes the current text of the USA FREEDOM Act, Paul has announced his intention to offer several amendments to the legislation.

Senator Paul’s filibuster was supported by Senators Daines (R-MT), Lee (R-UT), Heinrich (D-NM), Coons (D-DE), Tester (D-MT), Cantwell (D-WA), Blumenthal (D-CT), Wyden (D-OR) and Manchin (D-WV).

paul-speech-wordle

Image: Word Cloud of Senator Paul’s Filibuster of USA FREEDOM Act, Joseph Hall (CC-BY)

Additionally, while Senator McConnell has now filed motions to proceed on the USA FREEDOM Act and his reauthorization bill, both would still need to clear the hurdle of 60 votes for cloture.  It is not clear whether there are enough votes for either bill.  While there have been suggestions that Congress could pass a very short-term reauthorization — for example, a two-moth reauthorization — to provide time to forge compromise legislation, the House may not be able to consider such legislation before the June 1 sunset.  There is, therefore, a possibility that Section 215 of the PATRIOT Act might sunset, which could greatly change the dynamic of the discussions on surveillance reform.  Should Section 215 sunset, any reform legislation would essentially be seen as granting or reinstating authorization for surveillance under this provision once again rather than simply extending existing authorities, thus changing the political dynamic and potentially creating a basis for stronger reform to protect privacy and civil liberties.

House of Representatives Passes USA FREEDOM Act; Senate To Act Quickly

On Wednesday, May 13, 2015, the U.S. House of Representatives voted in favor of the USA FREEDOM Act, legislation that bans bulk collection under Section 215 of the USA PATRIOT Act as well as other authorities, such as the Foreign Intelligence Surveillance Act (FISA) pen/trap statute and national security letters (NSL) by an overwhelming majority of 338 to 88. ARL is pleased that the House of Representatives has passed stronger reform than its 2014 version and considers this development a step forward in surveillance reform.

Since 2006, the National Security Agency (NSA) has engaged in the practice of bulk collection of phone records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. The 2015 USA FREEDOM Act, backed by the White House, specifically addresses this issue and prohibits bulk collection, only permitting limited surveillance orders that focus on a specific selection term. The Court of Appeals for the Second Circuit also addressed this issue recently, ruling that the NSA’s practice of bulk collection exceeded the authority under Section 215 and therefore unlawful.

The 2015 version of the USA FREEDOM Act passed by the U.S. House of Representatives also includes several amendments to the Foreign Intelligence Surveillance Court (FISC) and transparency measures, representing an improvement over the version passed during the last Congress. The bill will now go to the Senate and must be considered quickly, given the upcoming expiration date of certain provisions of the PATRIOT Act, including Section 215.

While the version passed today by the House of Representatives includes better reforms to surveillance practices than in the 2014 bill, the USA FREEDOM Act is just one step forward in a series of necessary reforms. The Court of Appeals for the Second Circuit’s recent unanimous decision that the NSA’s bulk collection practices exceeded the scope of authority granted under Section 215 demonstrates the egregiousness of the NSA’s interpretation of its authority and the willingness of FISC to approve such broad application of the law. Congress should take care to ensure that provisions under USA FREEDOM Act are not similarly interpreted in an overly-broad manner by the NSA to infringe on the privacy rights of those in the United States. ARL looks forward to continuing to work with Congress to ensure that privacy rights are respected and hopes that additional reforms will be made.

ARL Supports Amash-Conyers Amendment to End Bulk Collection Under Section 215

An amendment to the Defense Appropriations bill proposed by Representatives Justin Amash (R-MI) and John Conyers (D-MI) would return Section 215 to a reasonable scope, allowing the collection of important information about suspected terrorists but barring large-scale collection of information about innocent Americans. The Association of Research Libraries strongly supports this amendment, which would curtail the National Security Agency’s (NSA) program to collect the phone records of millions of Americans.

Section 215 is often referred to as the ‘library records provision,’ because libraries have been sounding the alarm about its massive scope for years. The breadth of the statute made overreach nearly inevitable; revelations about the NSA’s bulk collection of information about innocent Americans makes reform imperative.

The Amash-Conyers Amendment is a rare opportunity to send a strong, bipartisan message to the NSA that its surveillance activities have gone too far. ARL applauds Representatives Amash and Conyers and urges other Representatives to join them in voting to restore balance to the NSA’s surveillance practices.

Currently, the Act permits law enforcement to compel, with a minimal showing to a judge, any person or entity to turn over any ‘tangible thing’ related to almost any person, including innocent Americans.

One of the very first things I (Brandon, here, filling in until they hire my replacement) ever wrote for ARL – the Library Association Statement on Section 215 of the USA PATRIOT Act and National Security Letters (scroll down past the statement on that particular PATRIOT Act re-auth). Hate to say I told you so.