A Balancing Act: How Congress Came Together to Reign in Metadata Collection and Why You Should Care

May 29, 2015

 

**First appeared on kfoxtv.com**

 

Get ready for a proverbial bloodbath on Sunday. That’s right, a day that, for many, is one of rest and worship will likely get very, very ugly as lawmakers head to

Capitol Hill to work on two big bills: the USA Patriot Act and the USA Freedom Act.

 

Both of these bills have incredibly patriotic sounding names, but one has been criticized by civil liberties advocates as an odious assault on freedom and the other is said to be a watered-down version of its original self.

 

Now, in order to understand the showdown we can expect to see on Sunday, you first have to understand how all of this came about. In order to do that, we have to travel back to 2001 right after the 9/11 terror attacks that launched us into two of the longest wars in American history.

 

While New York first responders were still sifting through the rubble of that fateful day looking for survivors, 233 miles to the south, intelligence officers in the Pentagon, FBI and CIA were putting their heads together, trying to figure out how something like this could happen without their knowledge.

 

One of the starkest revelations to came out of the investigation into the attack from the 9/11 Commission was the story of one of the main hijackers, Kahlid al-Mihdhar. Intelligence agencies in the Far East had been tracking his movements and affiliations with Al Qaeda but they lost track of him. Around the same time, the U.S. had identified a safe house for Al Qaeda in Yemen. Intelligence officers knew that there was a phone in there but they did not know who was calling it.

 

It turns out that al-Mihdhar had placed seven phone calls to that house from San Diego, coordinating the attacks. The NSA had intercepted these phone calls overseas but they didn’t know where he was making them from and they certainly didn’t know he was in the U.S.

 

One of the main arguments for the Patriot Act and the bulk collection of metadata is that if the government had the power to do then what it can do now, the U.S. might have been able to track down al-Mihdhar before it was too late.

 

At a time when the U.S. had just been knocked to its knees unlike ever before, the idea of that type of protection was too alluring to ignore.  This is the premise for the Patriot Act. It also does a whole host of other things including authorizing indefinite detention, expanding National Security Letters and giving authorities the right to search a business or home without a person’s consent or knowledge. The Patriot Act was passed in October and finally everyone took a deep breath, thinking the U.S. had just become a little safer.

 

But none of those lawmakers who agreed to the bill had any idea how long or how costly future wars in Iraq and Afghanistan would be. They couldn’t predict the Arab Spring or the rise of ISIS. So, sunset provisions were put on several parts of the Patriot Act, meaning congress would either have to re-up those provisions or they would be done away with. The bulk data collection provision, or Section 215 of the Patriot Act, was re-upped in 2005 and then again in 2010.

 

Now, five years later, congress needs to decide whether to keep the Patriot Act going as-is or allow some of the most controversial provisions to expire. Only this time is different and it is all because of one man: Edward Snowden.

 

You see, despite being hotly contested before, the Patriot Act was seen as controversial but essential and most Americans had absolutely no idea just how far government could delve into their lives legally.

 

Forgive the Matrix reference, but what NSA whistleblower Edward Snowden’s docudrop did was force-feed the red pill of truth down every American’s throat whether they wanted it or not.

 

We learned that the NSA wasn’t only capable of collecting the information of millions of unassuming Americans without justification, but that it was actually doing it.

 

The first revelation by the Guardian’s Glenn Greenwald revealed that Verizon had been handing over the data (dates, times, duration, location, recipient, etc.) of virtually all of its customers for years. Soon after we learned it wasn’t just Verizon, it was almost every telecommunication company.

 

Then we learned about PRISM, which the NSA uses to request user data from tech companies like Google, Facebook, Microsoft and Apple. We learned that the U.S. works with the British spy agency GCHQ to keep tabs on fiber optic cables all over the world in order to monitor the Internet.

 

We learned the U.S.  tapped the phones of other world leaders, that the NSA invented ways to circumvent encryption, that the NSA collects 200 million text messages every day through a program called Dishfire and that it intercepts all phone calls in the Bahamas and Afghanistan using MYSTIC. This list of revelations goes on and on.

 

Once Americans learned even one of these truths, let alone all of them, there was no turning back. Now, even the most innocent phone calls make activists, whistleblowers and journalists wonder in the back of their minds if they are being monitored and if this phone call could present a problem down the road… essentially, are they spoon-feeding information about their lifestyles, contacts and habits to the NSA unwittingly?

 

That, despite being force-fed to us by Edward Snowden himself, is a tough pill to swallow.

 

So here we are, days away from the June 1 deadline for re-upping provisions of the Patriot Act and also, importantly, a little over a year away from the 2016 presidential election and congress members now have weigh out the options.

 

There are plenty of arguments, good, valid arguments, on both sides. For those against renewing it, perhaps the most potent criticism is this: Section 215 has never stopped an act of terrorism in its 14 years of existence.

 

“That is not the opinion of the NSA's most ardent critics, but rather the findings of the president's own review board and the Privacy and Civil Liberties Oversight Board. This program has had over a decade to prove its value, and yet there is no evidence that it has helped identify a terrorism suspect or ‘made a concrete different in the outcome of a counterterrorism investigation,’” said the American Civil Liberties Union.

 

An analysis by the New America Foundation of 225 terrorism cases since 9/11 found that, “The controversial bulk collection of American telephone metadata, which includes the telephone numbers that originate and receive calls, as well as the time and date of those calls but not their content, under Section 215 of the USA PATRIOT Act, appears to have played an identifiable role in initiating, at most, 1.8 percent of these cases.”

 

Others deny that claim, including Sen. Dianne Feinstein, who said it helped thwart plots to bomb NYC subways, the New York stock exchange and a Danish newspaper. All of those are hotly contested.

 

President Obama himself spoke in Berlin claiming that 50 threats were thwarted in 20 countries around the world. That sentiment was reverberated by the Director of the NSA Keith Alexander in his testimony before congress as well.

 

We have also heard from federal judges, who as recently as this month have deemed Section 215 to be illegal and said the Patriot Act does not support the type of bulk collection of domestic calling records that the NSA has been conducting for years.

 

2016 GOP Presidential contender Rand Paul has made his opinion on the matter quite clear. On May 20, he took to the Senate floor with the intention of filibustering the renewal of the Patriot Act. To be clear, this move wasn’t technically a filibuster but that’s neither here nor there in this blog. Paul spoke on the Senate floor for a whopping 10 hours and 30 minutes, during which time he outlined the myriad of ways he believes the Patriot Act and U.S. Constitution are diametrically opposed to one another.

 

At the very least, he said, he wants the opportunity to debate it with his cohorts.

 

Some called his move a political stunt or a money-raising scheme, others joined him on the floor for the fight. In the end, Paul didn’t change the Patriot Act and he didn’t delay a vote on a fast-track trade bill as intended.

 

So now, it’s down to the wire.

 

The Senate will meet on Sunday to discuss Section 215 one more time. If something isn’t agreed upon, it will expire at midnight. We don’t quite know what will happen if it expires.

 

This is as good of a time as any to talk about the other bill I mentioned at the beginning of this blog, the USA Freedom Act. As originally intended, this was essentially a rewrite of Section 215, limiting the NSA’s metadata collection capabilities, ending the collection of domestic call records, putting a stop to National Security Letters and reforming the way the FISA court approves NSA surveillance requests.

 

To supporters, this is a good compromise. To critics, it either goes too far or doesn’t go far enough. When the House took up the bill, it made significant changes that critics say watered it down so much that it wouldn’t have any teeth to it when it comes to reigning in the NSA. Nevertheless, it passed the House overwhelmingly 338-88.

 

The version that passed reforms bulk collection, increases transparency and adds judicial safeguards to protect Americans’ Fourth Amendment rights. The burden of storing user phone records would be passed off to the private sector and the NSA would need a court order to search each one.

 

So, the can was kicked to the Senate. But it isn’t a simple black or white decision there either. As with most issues, there are several sides. Majority Leader Mitch McConnell thinks the Patriot Act should be renewed as-is.

 

Others, like Utah Sen. Mike Lee, think the USA Freedom Act is a good fix. President Obama, the Electronic Frontier Foundation, former Attorney General Eric Holder and even the director of the NSA himself James Clapper have voiced support for it.

 

But some, like Rand Paul, think both bills should be scrapped.

 

Before going on its Memorial Day recess, the Senate voted against a motion to begin debating the USA Freedom Act 57-42, falling just three votes shy of the conversation. It’s believed that many were holding out hope that a temporary stopgap measure to extend the Patriot Act for another two months to give the Senate time to debate it further would pass. But that, too, failed. Sen. McConnell tried to extend the Patriot Act to June 5 but that failed, then to June 3 but that failed then to June 2 but that also failed.

 

So here we are, waiting for Sunday to see how this whole thing plays out. As a political journalist, it’s both fun and frustrating to see Congress go down to the wire on vote after vote. But this Sunday will be one for the record books.

 

It will be dramatic and unpredictable. In short, it will be a proverbial bloodbath. It’s something most Americans won’t pay attention to but will, rather, read about the next day. But this is history, folks, and it’s also uncharted territory. No matter which way the pendulum swings on Sunday, it will make headlines Monday and the NSA will be left to pick up the pieces and figure out how to move forward from here, both protecting the American public and also respecting its rights. So get out the popcorn and get ready for the debate.

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