Last Updated on April 22, 2021, 2:16 pm ET
*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.