Lawmakers targeting the NSA’s unconstitutional spying have a big card to play if Obama and Congress don’t get behind reform

Privacy advocates are closely watching discussions in the Senate over the USA FREEDOM Act, a measure originally intended to end the NSA’s unconstitutional bulk data collection program and protect Americans’ civil liberties. They’re hoping that a strengthened version of the bill will pass the Senate Judiciary Committee, and they may get their wish:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), the lead Senate sponsor of the original USA Freedom Act, has repeatedly expressed disappointment in the House-passed version of the bill.

He has pledged to “fight for a stronger USA FREEDOM Act” that bans bulk data collection.

Other pro-reform committee members have joined Leahy’s calls.

Sen. Richard Blumenthal (D-Conn.) said he is “very hopeful” that Leahy will move ahead with his version of the USA Freedom Act.
Harley Geiger, senior counsel at the Center for Democracy and Technology, said these calls for stronger reforms from Senate Judiciary Committee members, including the Chairman, are “very encouraging.”

Geiger said he is “optimistic that they will make improvements to [the House-passed USA Freedom Act], but the precise nature of improvements is still being discussed.”

The House-passed version of the Freedom Act was watered down, passed with vague language that could be broadly interpreted by the FISC and, quite possibly, continue the bulk data collection program. That is a nonstarter for Leahy and other senators in the chamber from both sides of the aisle who want to better protect Americans’ privacy.

Members of the Senate Intelligence Committee, however, aren’t going to make this an easy task. There’s a divide on the FREEDOM Act in the committee between the privacy reformers and those who want to keep the unconstitutional status quo.

Sen. Dianne Feinstein (D-CA), who chairs the committee and has been one of the most vocal cheerleaders of the NSA, hinted the urgency of getting something done before next summer, when Section 215 of the USA PATRIOT Act, the section of the law used as the legal justification of the NSA’s bulk data collection, expires:

Pro-reform lawmakers, companies and nonprofits have one tool on their side that often works against them: the clock. The bulk collection authorities in the PATRIOT Act expire next June, and reformers could try to use the threat of letting that power expire to inspire more favorable terms in any USA Freedom Act compromise. Many lawmakers say they think Congress wouldn’t vote to reauthorize the law as is if a vote were held today.

“When the time comes for these sections of the PATRIOT Act that sunset next year, there’s gonna be chaos,” Feinstein said. “There’s a high likelihood that we get left with nothing.”

A similar threat was made last year by Rep. James Sensenbrenner (R-WI). He warned Deputy Attorney General James Cole that the “[t]here are not the votes in the House of Representatives to renew Section 215.” That may go for the Senate, too, where there could be enough members to block reauthorization if significant changes aren’t made.

Privacy reformers in Congress should play that card: protect Americans’ privacy and reform the NSA or lose the most controversial, most abused part of the PATRIOT Act. At this point, the latter may be the most preferable outcome.

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