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.