eWEEK content and product recommendations are editorially independent. We may make money when you click on links to our partners. Learn More.
The Judiciary Committee of the U.S. House of Representatives has overwhelmingly passed a bill that would make substantial modifications to the Patriot Act, including revisions to intelligence agencies’ bulk collections of data that have angered many people at home and abroad.
The bill, now called the USA Freedom Act, would allow challenges to national security letters and it makes significant changes to the secret Foreign Intelligence Surveillance Act (FISA) Court, including declassification of its decisions on private data requests and collection.
The legislation would also makes some changes to how the government tracks people as they move in and out of the United States. Basically, when a suspected terrorist enters the United States, intelligence agencies can continue tracking that person for up to 72 hours while the government seeks a warrant.
The bill also allows companies under orders to collect personal data for the government to challenge gag orders, and it allows them to discuss national security letters (orders by the FBI to turn over information without a warrant) with certain third parties, primarily their legal counsel, if they want to challenge the orders. Companies will also be allowed a bit more leeway to disclose how they respond to national security letters.
The bill has very strong bipartisan backing in the House and it is expected to pass there around mid-May. The new bill is strongly backed by Rep. James Sensenbrenner (R-Wis.), author of the Patriot Act.
“At the heart of this legislation is the reform of Section 215 [of the Patriot Act] to prohibit bulk collection of any business records. Bulk collection is also prohibited under the FISA Pen Register/Trap and Trace Device authority and National Security Letter authorities,” wrote Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee, in his statement describing the legislation.
“In place of the current bulk telephone metadata program, the USA Freedom Act creates a narrower, targeted program that allows the Intelligence Community to collect non-content call detail records held by the telephone companies, but only with the prior approval of the FISA Court,” Goodlatte wrote. He noted that the law also creates a panel of experts to advise the FISA on civil liberties, privacy, communications technology and other related matters.
However passage in the Senate is another matter. Senate Majority Leader Mitch McConnell (R-Ky.) is opposed to the bill, as is Richard Burr (R-N.C.), chairman of the Senate Intelligence Committee, and both senators have the ability to kill the bill if they so desire.
The question is whether their opposition to the Freedom Act is strong enough that they are willing to take the necessary action to kill it.
Proposed Patriot Act Revisions Would End Most Mass Data Collections
The reason they may not ultimately do that has to do with the reauthorization of the Patriot Act, which is up for renewal. McConnell is on record for favoring a reauthorization of the bill in its original form, without the changes that the Freedom Act would force.
However, it appears that a bipartisan majority of senators favors the changes created by the USA Freedom Act, so there’s a strong likelihood that McConnell won’t get the support he needs to reauthorize the Patriot Act in its original form.
His only chance to keep the Patriot Act alive would be to accept the changes created by the Freedom Act. At this point, there is no other legislation in the Senate to reauthorize the Patriot Act in its original form.
“This is a carefully crafted compromise,” said Bijan Madhani, public policy and regulatory counsel for the Computer and Communications Industry Association (CCIA). “The chances are good in the Senate,” he said.
While the Freedom Act has gathered strong public support from all sides (except for senators from Kentucky), that does not mean everyone is thrilled with it. Madhani said CCIA would like to see more robust controls over the FISA Court and more protection for Americans when their communications are caught up in intelligence aimed at foreign citizens.
There are also many who would rather see the Patriot Act eliminated, including Senator Rand Paul (R-Ky.), who is running for president. A number of tech industry associations, including the CCIA, the Software and Information Industry Association (SIIA) and BSA/The Software Alliance, have voiced approval at the committee passage of the USA Freedom Act. Perhaps more importantly, there are more Senate sponsors this time, than there were when a similar bill failed to pass the Senate by two votes.
While it’s not impossible to pass legislation over the strong objections of the Senate majority leader, it is difficult. The chairman holds the reins of power in the Senate, and he can dispatch a bill to oblivion if he so desires. But enough senators can overcome that despite the procedural roadblocks that the majority leader can put in the way. But it wouldn’t be easy.
At this juncture, the best chance the Freedom Act has is for the Senate majority to support the bill to make it clear that they are determined they want the Freedom Act and that they’re willing to defeat the unrevised Patriot Act.
Mitch McConnell may be stubborn, but he’s not dumb. He will likely realize that getting most of what he wants in a bill is better than getting nothing. And the Freedom Act of 2015 is a lot better than nothing at all.