Could Congressional Gridlock Save Us from the PATRIOT Act?

Fearmongering may not get security state members of Congress what they want.


Is a surrender imminent?
Credit: Gage Skidmore / photo on flickr

While the Republican Party may have taken full control over Congress at the start of the year, that doesn't mean the party is all on the same page now. Nothing makes that fact more clear than the debate over the reauthorization of Section 215 of the PATRIOT Act, the component that has been used to justify mass surveillance of the metadata of Americans, all under the aegis of the war on terror.

The use of Section 215 in this fashion has pitted security state politicians against privacy politicians on both sides of the aisle. But with the Republicans in charge and Section 215 set to expire in June, all eyes are on who will win the argument on the GOP side.

Ron Bailey noted this morning the latest round of fearmongering that homegrown terrorists are among us, justifying domestic surveillance. On Sunday, Senate Majority Mitch McConnell reaffirmed his commitment to keeping Section 215 intact and wants to extend the PATRIOT Act, unchanged, until 2020. From Reuters:

Speaking at the Edward M. Kennedy Institute in Boston, McConnell called the measure "an important tool to prevent the next terrorist attack," and pledged to continue fighting for it against recent challenges. 

But he did acknowledge that he might not be able to get what he wants, saying we're "better off" with the PATRIOT Act extension, but he'll "see where the votes go."

There are a couple of indicators that it's not going to go his way. This week the House is expected to vote on the USA Freedom Act. The act scales back the federal government's surveillance authorities in some ways, but permits others. The compromise has split attitudes among privacy analysts. It has quite a few supporters (read more here), but Rep. Justin Amash last week posted on Facebook warning that, "While limiting certain types of bulk collection, the latest USA Freedom Act would authorize bulk collection of Americans' records for the first time," meaning it would actually entrench the authority of certain types of mass collection rather than the current system where the executive branch is simply interpreting the law to give itself broad collection authority.

It sounds like Amash won't be voting for the compromise. We should assume Sen. Rand Paul (R-Ky.) will not either. He voted against a previous version of the USA Freedom Act that actually had stronger protections than the version the House is considering right now. Instead, Paul is promoting his Fourth Amendment Preservation and Protection Act, which would essentially eliminate the "third-party doctrine" and require a probable cause warrant for a law enforcement agency to demand an individual's information or data held by phone services, Internet providers and others.

Paul also told the New Hampshire Union Leader today that he's willing to filibuster an effort to extend the PATRIOT Act unchanged:

"I'm going to lead the charge in the next couple of weeks as the Patriot Act comes forward," he said in a one-on-one interview with the New Hampshire Union Leader. "We will be filibustering. We will be trying to stop it. We are not going to let them run over us. And we are going to demand amendments and we are going to make sure the American people know that some of us at least are opposed to unlawful searches."

What that might look like is unclear. Both McConnell and Paul could end up losing to the compromise of the USA Freedom Act. McConnell would obviously have to fold if the deadline approaches, and he isn't able to get a blanket extension of Section 215. The fracturing of parts of the privacy and tech communities toward the USA Freedom Act may not give Paul the base he needs to force his agenda either.

What's even less clear is why he McConnell would want to extend Section 215 as it stands anyway. Last week, the Second Circuit Court of Appeals ruled that the mass collection of Americans' telephone metadata isn't actually authorized by Section 215. The court didn't force any actual changes yet, sending the case back to a lower court, but also noted in the decision that it was intentionally giving Congress time to figure out how it wanted to proceed, knowing that the section was due to sunset soon. It would seem as though extending Section 215 might not even give McConnell what he wants.

So in one sense, it doesn't seem like the federal government will have the same "authority" (scare quotes to acknowledge my deliberate avoidance of the constitutional issues) to collect Americans' metadata come June that it does now. But we really don't have a good sense yet of what sort of authority the National Security Agency actually will have.