It was the last hours of the last day before a congressional recess when the U.S. Senate considered two different actions regarding the USA Patriot Act, the law that among other things allowed the National Security Agency to collect telephone metadata from nearly everyone, nearly anywhere.
One action would have extended the Patriot Act is it is currently. The other would have revised the act to remove the authorization for bulk metadata collection. Both bills failed to pass the Senate.
Notably, the USA Freedom Act, which is the bill that would eliminate bulk metadata collection, received a majority vote in the Senate, but fell short of the 60-vote supermajority required to pass it by three votes. Votes to reauthorize the Patriot Act or to extend it also failed, although those votes were not as close. The Freedom Act had passed in the House of Representatives overwhelmingly.
Following the series of failed votes, the Senate went into recess for the Memorial Day break. Senate Majority Leader Mitch McConnell announced that he would call the Senate into session on Sunday, May 31, to try again. If the Senate fails to approve either action again, then the Patriot Act will expire on June 1.
Of course, there's always the chance that the Senate will have a change of heart and vote to reauthorize or extend the Patriot Act, but almost nobody takes that chance seriously. First, the House through its vote on the Freedom Act has made it clear that it's not going to approve a renewal of blanket surveillance.
In addition, the Second Circuit Court of Appeals has already said that the phone metadata collection is unconstitutional. If Congress extends the Patriot Act, it's clear that this time the court would order it stopped.
The only other action the Senate can take if it wants the Patriot Act to remain in any form is to approve the Freedom Act. While there have been movements within Senate committees to draft a different bill, none of them has been filed and Senate rules are such that they could not be voted on before the expiration of the current Patriot Act. At this point, the only two possible outcomes are approval of the Freedom Act and complete expiration of the Patriot Act.
Almost everyone trying to influence the Senate is betting that it'll be the Freedom Act. The White House has gone on record as favoring that outcome, and so have most of the lobbying and pressure groups trying to influence the outcome.
"The Senate has one more chance to come up with something," said Christian Dawson, chairman of the Internet Infrastructure Coalition. "My expectation is that the Senate leadership will realize that they have to make something work on Sunday," he said. "My hope is that the Senate will take another look at the Freedom Act."