A new standoff is building over the Patriot Act.
Congress is in the opening rounds of a month-long battle over American spying, in what is likely to be the last best chance for civil libertarians to rein in the National Security Agency (NSA) since Edward Snowden’s leaks two years ago.
{mosads}With a critical deadline to renew the act looming at the end of May, lawmakers have already begun to stake out their positions in the most heated fight over intelligence powers in years.
Here are five things you need to know about the coming fight:
1.) When’s the deadline?
On June 1, three portions of the Patriot Act — the national security law passed in the days after Sept. 11, 2001 — are set to expire. But Congress is out of session because of Memorial Day for the last week of the month, so the effective deadline is May 22.
Among the expiring provisions is Section 215, the controversial measure that allows the government to collect “any tangible thing” that is “relevant” to an investigation into suspected terrorists or foreign spies.
Edward Snowden’s leaks in the summer of 2013 showed how the National Security Agency has used that language to collect “metadata” about millions of Americans phone calls without warrants. Since then, civil libertarians have targeted Section 215 for reform.
The phone records include information about the two numbers involved in a call, when the call took place and how long it lasted — but not the actual details of the conversation.
The other expiring sections expand the ability of the government to track potential “lone wolf” attackers and also allow intelligence agencies to obtain surveillance orders that cover multiple unidentified devices, which officials say is crucial to track suspects who switch from one phone to another, for instance.
2.) What happens if Congress fails?
According to the White House, the NSA’s phone records program will end completely.
“If Section 215 sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Ned Price said in a statement in March.
For some critics of the NSA, that would be welcome news. But the Obama administration and most lawmakers say it would handicap U.S. officials trying to stop terrorists.
“If that tool is taken away from us … and some untoward incident happens that could have been thwarted if we had had it, I hope that everyone involved in that decision assumes the responsibility and it not be blamed, if we have another failure, exclusively on the intelligence community,” Director of National Intelligence James Clapper said in March.
“The sky wouldn’t fall,” Office of the Director of National Intelligence general counsel Robert Litt said on Friday. However, “there are kinds of records we will not be able to get if 215 expires.”
3.) What are Congress’s options?
Lawmakers essentially have three options before them.
On the one hand, they can do a “clean” reauthorization of the law without changes. That’s the route preferred by Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Intelligence Chairman Richard Burr (R-N.C.), who recently introduced legislation to extend the law until 2020.
But it appears unlikely that plan could get through either chamber of Congress, given the heavy opposition from civil liberties advocates on both sides of the aisle. Even Burr admits his legislation is largely an opening bid, and will likely have to include changes to win lawmakers’ support.
At the other end of the spectrum, lawmakers could do nothing, and allow the law to lapse. Sen. Rand Paul (R-Ky.) has previously pledged to vote against any legislation that reauthorized the Patriot Act, and about a dozen House lawmakers have rallied behind legislation to kill the law entirely.
That plan could garner even less support than the effort to renew the law in its entirety, however, amid growing fears about the Islamic State in Iraq and Syria (ISIS) and other threats.
What appears most likely is a reauthorization of the current law, along with some changes to acknowledge concerns about privacy and government transparency.
In the House, Judiciary Committee leaders have rallied around legislation, the USA Freedom Act, that would stop the NSA from storing people’s phone records, and instead force the agency to obtain the information from private companies, among other changes.
The bill would also limit the collection of information under other surveillance tools, such as “national security letters,” which request companies to turn over data. It would also add new transparency provisions and place a new expert panel on the shadowy Foreign Intelligence Surveillance Court.
That plan will likely meet resistance from both factions, however, and its path forward remains uncertain in the Senate, where some key lawmakers have expressed skepticism.
4.) Has Congress tried to reform the law before?
Yes, and it failed.
Last year, the House passed a pared-down bill to end the NSA’s record keeping, though opponents said that it was riddled with loopholes that would have still allowed the agency to collect records about huge amounts of people at once, such as everyone in a certain area code.
The effort hit a wall in the Senate, when Democrats tried to push it across the finish line before handing control of the upper chamber to Republicans.
Sen. Patrick Leahy’s (D-Vt.) earlier version of the USA Freedom Act won the support of a handful of Republicans — such as Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah) — but it nonetheless came two votes shy of overcoming a procedural hurdle in December. Sen. Bill Nelson (D-Fla.) joined 57 Republicans to kill the bill.
But last year, lawmakers weren’t acting under the threat of a looming deadline. The law’s upcoming expiration date should force action this time around.
5.) Will it be an issue in 2016?
Yes, and the political jockeying has already started.
Sentiments about government surveillance tend to transcend party lines, and the issue could prove to be a lightening rod among Republican presidential candidates.
Paul has been the most outspokenly critical of the NSA, and even launched a lawsuit against the Obama administration for programs he says violate the Fourth Amendment to the Constitution. But Cruz has cosponsored a new version of the USA Freedom Act this year, and may prove to be an influential voice.
Meanwhile, former Florida Gov. Jeb Bush (R) has vigorously defended the records collection programs, which he called “the best part of the Obama administration.” Sens. Marco Rubio (R-Fla.) and Lindsey Graham have similarly defended the program.