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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.”
Patriot Act, Mass Phone Metadata Collection Seem Destined to Expire
Other observers echoed Dawson’s feelings. “I think the focus must be on what can pass,” said David DeLuc, senior director of public policy at the Software and Information Industry Association. “The chance of another comprehensive reform package passing five days from now is unlikely,” he said. “I think the Freedom Act will end up prevailing.”
But it’s worth noting that an eventual passage of the Freedom Act is not a sure thing. For one thing, some senators are against it because they don’t think it’s strong enough. In addition, “There is a risk of fear building on weaker senators who might be willing to do a short-term authorization,” said Bijan Madhani, public policy and regulatory counsel of the Computer and Communications Industry Association.
But a short-term extension isn’t likely either. Majority Leader McConnell tried several such extensions as a last ditch effort, some lasting only a few days, but they all failed.
So what will ultimately happen? Bulk collection of phone metadata will almost certainly end. Even if the Senate passes an extension to the Patriot Act, the House would have to approve it, and that does not appear even slightly likely, considering the federal court opinions. Then President Obama, also considering the actions of the federal courts, would have to sign it. That seems unlikely too.
Instead, the Senate will almost certainly pass the Freedom Act. McConnell has already said he expects a few more senators to support the bill when it comes to a vote on May 31. Now that it’s apparent that the original Patriot Act has no chance of passage, there’s little else the senators can do if they want some sort of legislation in place.
But not everyone is in favor of even the more limited Freedom Act. “Sunsetting the Patriot Act is the biggest win for ending mass surveillance programs,” Internet activist group Fight for the Future said in a prepared statement. “These bills were an attempt to disregard the abuses revealed by [Edward] Snowden and cement mass surveillance into law in defiance of the Constitution, the courts, and public sentiment,” the group’s CTO Jeff Lyon said.
But most other observers think the Freedom Act is what will pass. “We think the Freedom Act is a well-crafted bipartisan bicameral compromise.” DeLuc said. “It seems pretty clear that this bill is a way forward. This isn’t something that’s far from passing.” DeLuc said that he thinks the other three votes required to pass the Freedom Act will be found once the senators have a chance to consider what they can achieve with their votes.