NSA Bulk Phone Records Collection to End Despite USA Freedom Act Failure

By Spencer Ackerman, Guardian UK

24 May 15

ven as the Senate remains at an impasse over the future of US domestic surveillance powers, the National Security Agency will be legally unable to collect US phone records in bulk by the time Congress returns from its Memorial Day vacation.

The administration, as suggested in a memo it sent Congress on Wednesday, declined to ask a secret surveillance court for another 90-day extension of the order necessary to collect US phone metadata in bulk. The filing deadline was Friday, hours before the Senate failed to come to terms on a bill that would have formally repealed the NSA domestic surveillance program.

“We did not file an application for reauthorization,” an administration official confirmed to the Guardian on Saturday.

The administration decision ensures that beginning at 5pm ET on 1 June, for the first time since October 2001 the NSA will no longer collect en masse Americans’ phone records.

It represents a quiet, unceremonious end to the most domestically acrimonious NSA program revealed by whistleblower Edward Snowden, in a June 2013 exposé in the Guardian – effectively preempting a bid by GOP leader Mitch McConnell to retain it. But McConnell and other Senate Republicans intend to continue their fight to preserve both that program and other broad surveillance powers under the Patriot Act.

A chaotic early morning on Saturday in the Senate ended with the procedural defeat of the USA Freedom Act, which would have banned the NSA bulk collection program while renewing an expiring Patriot Act provision allowing FBI access to business records and a vast amount of US communications metadata.

But McConnell, who is seeking to retain all current domestic surveillance powers, also failed to convince the Senate to pass a temporary extension of the provision, known as Section 215, which shuts down at midnight on 31 May. McConnell’s alternative would retain all existing FBI under Section 215 as well as the NSA bulk phone records collection.

McConnell will reconvene the Senate on 31 May to attempt to settle the issue. Even if he can pass his temporary extension, all of Section 215 will still expire, since the House left on Thursday having overwhelmingly approved the Freedom Act and will not return until 1 June.

With the two houses of Congress at odds, privacy advocates prepared themselves for a circumstance they had been unable to engineer since 2001: the wholesale rollback of a wide swath of post-9/11 domestic surveillance.

“The Senate is in gridlock, but the tides are shifting,” Michael Macleod-Ball of the American Civil Liberties Union’s Washington office said Saturday. “For the first time, a majority of senators took a stand against simply rubber-stamping provisions of the Patriot Act that have been used to spy on Americans.

“It’s disappointing that the Senate couldn’t coalesce around far reaching reform, but in its absence the Senate should simply let the expiring provisions sunset.”

Until 31 May the NSA, the FBI, privacy advocates and legislators on all sides of the issue are in a state of uncertainty over the scope and reach of domestic US surveillance. Advocates of the USA Freedom Act in the House warned all week that the House would not restore the status quo ante on surveillance, particularly since a federal appeals court on 7 May ruled the NSA bulk phone records collection illegal.

But should McConnell prevail in the Senate on 31 May, the coalition around the USA Freedom Act will be put to the test as never before.

The compromise bill has substantial support from NSA allies, including the leaders of the intelligence committee, who considered it the only viable path to preserving as much surveillance authority as possible, particularly after Representative James Sensenbrenner and his team hinged its introduction this year to the expiration of Section 215. Similarly, many of the 88 votes against the bill last week came from surveillance reformers who considered it insufficient.

It is unclear how the House will vote if its choices are pushed to the extremes that the Senate impasse has set up: all the post-9/11 domestic surveillance powers under the Patriot Act or none of them.

The NSA and the Obama administration have conceded that the bulk domestic phone records collection has never stopped a terrorist attack. Even though the administration has taken as a fallback position the line that the FBI surveillance powers under Section 215 are crucial for domestic counterterrorism, a Justice Department inspector general’s report issued on Thursday “did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.”

But now that the administration has set in motion the end of the bulk domestic phone records collection, McConnell will have to convince a recalcitrant Congress, in both Houses, to restart a program an appeals court has deemed illegal, as well as to undo the broader repeal of Patriot Act authorities prompted by Senate inertia.

On Saturday privacy campaigners, on the verge of a goal that seemed unrealistic weeks ago, were cautiously optimistic.

“No matter what comes next, tonight’s rejections of the extension of Section 215 represent a victory for democracy over totalitarianism; for open government over secret law; for reasonability over hysteria,” said David Segal of Demand Progress after the vote.

“Those who helm the government’s surveillance apparatus have engaged in craven abuse of already overly-expansive spying powers that do nothing to reduce the threat of terrorism, but pose ongoing threats to privacy, freedom, and democratic governance.”