The USA FREEDOM Act was born out of the shocking revelations of overbroad government surveillance that began two years ago. In its short life (it was first introduced in 2013) the USA FREEDOM Act has gone through many iterations; along with many others we have supported this legislation in our push for broader surveillance reform. The USA FREEDOM Act, although not perfect and clearly a product of compromise, deserved our support. Yet, even after overwhelming support in the House, the Senate failed to do its job late last Friday night and failed to pass the USA FREEDOM Act (defeated by a 57-42 vote). Just three more votes were needed to move this legislation forward. The word \u201cdisappointing\u201d doesn\u2019t really express the proper sentiment.<\/p>\n
Facing expiration (at midnight on May 31, 2015) of three legal authorities authorizing US surveillance programs, the Senate also declined on Friday night to advance a two-month reauthorization of these authorities (by a vote of 45-54). The strategic decision-making here is still confounding. Why wait until the night before a holiday recess when the House has already left to take these votes to the floor? Now, Senate Majority Leader Mitch McConnell \u2013 left with few options — is taking the unusual step of calling a Sunday May 31st session to try again to pass something just hours before these authorities sunset. This won\u2019t be without several challenges.<\/p>\n
Any paths for emergency reauthorization or any \u201ccompromises\u201d will face filibuster threats from, among others, Senator Rand Paul, who took to the floor for 10 and half hours last week to lambast the surveillance state and refused Majority Leader McConnell\u2019s attempts on Friday evening to extend these expiring provisions by even one day. Senator Paul\u2019s hardline opposition, combined with the nuances of the Senate\u2019s arcane procedures and the presence of a number of other privacy champions in the Senate, means it will be nearly impossible to pass legislation in such a short window of time.<\/p>\n
On the House side, Representatives passed the USA FREEDOM Act overwhelmingly. The House is scheduled to return from recess and vote no earlier than 6:30PM on June 1st<\/sup> \u2013 well after the authorities sunset. There may be some last minute wrangling during this recess week, but without some agreement from the House to take up an interim reauthorization prior to the May 31st<\/sup> expiration, it appears that the Senate must either pass the House version of USA FREEDOM or let these authorities sunset. Put another way, if the Senate doesn\u2019t pass the House version of USA FREEDOM, there will be a gap in authorized collection by the intelligence community. Justice Department officials have indicated<\/a> that the NSA has already begun shutting down the 215 programs so as to be in compliance if a sunset occurs.<\/p>\n So what actually happens if these provisions sunset? It is tempting to view a sunset as a privacy win, as the government would be restrained from bulk collection of our telephone records after all. While there\u2019s truth to that, we can and should expect to see the national security hawks and the intelligence community push hard to reinstate some version of these authorities. A likely possibility is a Senate effort to pass a weaker \u201creform\u201d bill, a watered down USA FREEDOM Act. For example, several senators have been vocal about their belief in the need for a data retention mandate — which we\u2019ve spoken out against before<\/a> — so if these authorities expire, we fear post-sunset legislative efforts will likely include such a requirement as a pathway to 60 votes in the Senate. Already Senate Intelligence Chair Richard Burr and Vice Chair Diane Feinstein have each floated bills to this end. We oppose both of these bills; they do not provide the reforms that we need.<\/p>\n However, as Harley Geiger of CDT notes in a recent post<\/a> on Lawfare: \u201cA few hours\u2019 sunset may not make much difference to beltway insiders, but a post-sunset vote re-instating Sec. 215 can correctly be seen by voters as a huge expansion in government surveillance power after that power had gone dormant.\u201d While the Senate may look to compromise after sunset, the House may well lean the other direction. House Judiciary Chairman Goodlatte and Ranking Member Conyers have indicated in a recent statement<\/a>, \u201cIf the Senate chooses to allow these authorities to expire, they should do so knowing that sunset may be permanent.\u201d<\/p>\n Yet, permanent sunset of Section 215 would not satisfy the Senate, and it would not be a panacea for civil liberties. The government could still conduct bulk collection in a few different ways:<\/p>\n Privacy and security of users on the Internet is fundamental. Mozilla stands in continued support of the USA FREEDOM Act, as do hundreds of thousands of users, tech companies, privacy advocates, the Director of National Intelligence, the Attorney General, and the White House. Indeed, a bipartisan majority of both chambers of Congress support this legislation. We urge the House to stand behind their overwhelming vote to approve this legislation and to demand reforms that are at least as strong as the USA FREEDOM Act. Ultimately, this bill failed on a procedural vote on Friday night by just three votes. When the Senate reconvenes this Sunday, we hope three senators will step up to help enact the real reforms that users demand.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":"\n