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Senate Renews, Modifies, Patriot Act

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After several delays, the Senate approved a bill extending the Patriot Act and modifying the N.S.A.’s data mining program late yesterday:

WASHINGTON — In a remarkable reversal of national security policy formed after the Sept. 11, 2001, terrorist attacks, the Senate voted on Tuesday to curtail the federal government’s sweeping surveillance of American phone records, sending the legislation to President Obama’s desk for his signature.

The passage of the measure, achieved after a vigorous debate on the Senate floor, will lead to the reinstatement of government surveillance efforts that were blacked out on Monday after Senator Rand Paul, Republican of Kentucky, blocked their extension.

The vote was a rebuke to Senator Mitch McConnell, Republican of Kentucky and the majority leader, as lawmakers beat back a series of amendments that he sought that would have rolled back proposed controls on government spying.

Mr. McConnell took the Senate floor to give a speech unusual in its timing and tenacity before the final vote on the bill, which he cast with derision. The new law, he said, would “take one more tool away from those who defend our country every day.”

The vote was held after members of the House starkly warned that they would not accept any changes to the law, setting off an unusual stalemate between House Speaker John A. Boehner and Mr. McConnell.

President Obama said on Twitter that he would sign the bill when it comes to his desk.

“Glad the Senate finally passed the USA Freedom Act,” he wrote on the @POTUS Twitter account. “It protects civil liberties and our national security. I’ll sign it as soon as I get it.”

Prior to the debate, Senator Rand Paul, who was largely solely responsible for the fact that the Senate was unable to pass this bill before the Patriot Act expired at midnight on Sunday, and Oregon Senator Ron Wyden introduced a series of amendments aimed at placing more restrictions on the data mining program and other aspects of the Patriot Act. Among other things, these amendments would have required the government to get a warrant to access data in the hands of third parties, raised the standard required for a metadata warrant from a FISA court to “probable cause,” and in other ways have tightened the privacy and transparency provisions in the USA Freedom Act. Each of these amendments were rejected, as were other amendments offered by other Republican Senators that would have reversed many of the reforms to the metadata program that are included in the bill that passed the House. Had that set of amendments passed, the fate of the bill would have been far from certain since many Republicans on the other side of Capitol Hill had made clear that they would not accept a Senate bill that effectively rescinded the changes they had made to the metadata program.

As I said when this debate began in the House, ideally we would have just let the Patriot Act lapse. There’s really been no credible evidence presented that it has played any kind of significant role in law enforcement or intelligence operations related to the War On Terror over the past fourteen years, and it’s been used more to prosecute drug crimes than anything else. Nonetheless, it was clear that some kind of extension of the law was going to pass Congress and be signed into law at some point, and the reforms that the House passed to the data mining program are a significant improvement over what existed before. Instead of having the National Security Agency sweeping in and collecting all metadata from every telecommunications company several times a year, the government will now be required to go to a Federal Judge to receive a warrant to access particularized data. Granted, the  standard they will have to meet in that case is lower than the “probable cause” standard required under the Fourth Amendment, but taking the data out of the hands of the government is a good step forward. Additionally, the bill also provides for a somewhat more adversarial process in the FISA Court when dealing with warrants like these, and that is certainly a step in the right direction. All in all, Senator Paul and Senator Wyden were right to stick to their guns here but now that we’ve accomplished this much we can look ahead to the future when we can reform this process even more and, in at least some cases, end it altogether.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Good job by Paul and Wyden.
    Too bad Paul is otherwise insane.

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  2. michael reynolds says:

    I’m glad the old law expired and they were required to write a new law. That said, this is sound and fury signifying almost nothing.

    Your privacy and mine is already fatally compromised by private industry that is far more intrusive than the government ever even tried to be. Our privacy is as gone as ever but we’ve excluded the US government on grounds of. . . I forget, what is the alleged principle here? That government must never know what Google, Target, Costco, ATT, Amazon, Wells Fargo and hundreds of other corporations know? Because. . . why again?

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  3. Electroman says:

    I am the eye in the sky, looking at you
    I can read your mind
    I am the maker of rules, dealing with fools
    I can cheat you blind
    -“Eye in the Sky”, Alan Parsons Project, 1982.

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  4. Jeremy R says:

    Senator Paul and Senator Wyden were right to stick to their guns here but now that we’ve accomplished this much we can look ahead to the future when we can reform this process even more

    It’s not fair to group Wyden with Paul’s pointless and ultimately counterproductive actions on this issue. Unlike Paul, Sen. Wyden voted for cloture on the USA Freedom Act Sunday, a week ago Saturday, on the previous, better iteration of the USA Freedom Act last year, and when the bill finally came up for a vote, yesterday, Wyden voted for passage.

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  5. Jeremy R says:

    it was clear that some kind of extension of the law was going to pass Congress and be signed into law at some point, and the reforms that the House passed to the data mining program are a significant improvement over what existed before

    This is accurate. Just 3 of the Senators that voted against cloture on the reform bill also voted against cloture on a clean extension of the expiring Patriot Act provisions. The actual Senate constituency for sunsetting of the expiring authorities was practically non-existent. Consequently, It would have been tactically more effective for those Senators (Paul?) who wanted to reform Section 215 as much as possible to not filibuster the earlier EFF backed iteration of the USA Freedom Act. If that previous bill hadn’t failed by two votes last year, a version of the bill with stronger, more robust reforms would have been law for half a year already. It never made a lick of sense to expect better chances for reform after the new, more hawkish Congress was seated.

    Here’s EFF comparing last year’s iteration of the bill with the current one:

    https://www.eff.org/deeplinks/2015/04/new-usa-freedom-act-step-right-direction-more-must-be-done

    Last year, the Senate failed to advance a somewhat different, stronger USA Freedom Act by two votes. We supported the bill because it reformed the secret court overseeing the spying and ended the bulk collection of calling records. The bill introduced this week is not as robust as last year’s bill, but it still successfully accomplishes both of these goals.

    And here’s an article that notes the favorable amendments process for last year’s version of the bill:

    http://www.nationaljournal.com/congress/why-did-bill-nelson-vote-against-nsa-reform-20141119

    [S]ources close to the negotiations said Paul’s staff had indicated that the Kentuckian was considering voting to allow debate on the USA Freedom Act because Majority Leader Harry Reid had made the unusual decision to allow amendments on the floor, which would have allowed Paul to try to strengthen certain provisions.

    And privacy groups expressing their disappointment with his vote:

    “Although we appreciate his shared enthusiasm for reining in the NSA, many in the privacy community are deeply disappointed by Senator Paul’s vote,” said Kevin Bankston, policy director of the Open Technology Institute, in a statement. “By taking what he seemed to think was the strongest possible anti-surveillance stance, Senator Paul ironically ended up shooting the surveillance reform movement in the foot. That’ll definitely slow us down as we march down the path toward real reform, but it won’t stop us.

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  6. Hal_10000 says:

    That government must never know what Google, Target, Costco, ATT, Amazon, Wells Fargo and hundreds of other corporations know? Because. . . why again?

    Because Google, Target, Costco, ATT, Amazon, Well Fargo and hundred of corporations can’t put us in jail, fine us millions of dollars or order a drone strike on us. And because I can (and do) withhold my information from them without triggering a federal investigation.

    I’m hoping this is a turning point in the debate. The pro-BIg-Brother forces threw out their full array of apocalyptic rhetoric. But for the first time, it didn’t work. Let’s hope that starts a trend.

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  7. michael reynolds says:

    @Hal_10000:

    Because Google, Target, Costco, ATT, Amazon, Well Fargo and hundred of corporations can’t put us in jail, fine us millions of dollars or order a drone strike on us.

    Are there a lot of drone attacks around your neighborhood? That’s just paranoia. This is all a bunch of leftover 1984 conditioning. Still waiting for the governmental version of Big Brother even as we passively accept the Big Business Big Brother.

    I just had a card stolen through a data breach. 14 grand racked up before we noticed our card being rejected as overdrawn. That wasn’t government, that was Target. Google knows everything about me and if I were the kind of guy who had to worry about blackmail, I’d worry about some Google employee, not the NSA.

    I’d be for a law forbidding the NSA to use the data in anything other than terrorism investigations. That would be fine. The rest of this is outdated Orwellianism, fighting the last war even as we surrender.

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  8. Bob @ Youngstown says:

    @michael reynolds:

    Your privacy and mine is already fatally compromised by private industry

    yes, Privacy is just an illusion.

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  9. Bob @ Youngstown says:

    You can consider me naive if you want, but I have no concern if the government or anyone else knows who and when I call on my telephone. Even if I thought that NSA was listening to my telephone calls, I just don’t care.

    And why am I so cavalier about that? Because I’ve got nothing to hide. And even if I did, then the cause for trying to hide something is of my own making.

    If I’ve done something wrong (that I need to hide) I should take “personal responsibility” for it.

    As far as my shopping habits are concerned, I’m not thrilled that someone is collecting that information, but I accept that that data collection is just an element of our digital environment.
    I don’t lose sleep over it.

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  10. michael reynolds says:

    @Bob @ Youngstown:

    We’re fighting to “hold onto” something we gave up every time we click on a little box that asks us to accept terms and conditions. We gave up privacy for convenience.

    It’s a problem of ideology, basically. Americans are raised to be suspicious of government so we are. But we’re also raised to be efficient and that means going with what is convenient, so we happily give up on the one hand everything we pretend to be preserving on the other.

    This whole idea that we’d be giving the government some power to oppress us is backward. The power to oppress us exists – there are police forces and armies. If we reach a point where the US government is oppressing us the government will instantly restore all the access to data that they want, obviously. So we are not striking some great blow for freedom, we’re just depriving the government of a tool for fighting terrorists.

    Is it a vital or useful tool? Who knows? The oft-repeated story that surveillance has not been shown to have stopped an imminent terrorist attack is absurdly beside the point. NSA surveillance, like the TSA, is mostly a bluff. As a bluff it’s useful in complicating the planning carried out by bad guys. If the bad guys believe the NSA is listening then they are deprived of easy communication. That’s the point. If the bad guys know the TSA is checking luggage it complicates the planning of an attack.

    This is the problem with democracy, you have to play poker while letting everyone see your cards. It’s why we can’t mount effective propaganda campaigns. It’s why we can’t mount more effective diplomacy. Our desire to know everything makes it very hard to get some things done.

    What should have been the focus of a new bill is Congressional oversight. It’s not the collection, it’s the use, and that requires oversight by Congress. The NSA and CIA have been allowed by a supine Congress to lie to the overseers, and that is a genuine problem.

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  11. DrDaveT says:

    @michael reynolds:

    Are there a lot of drone attacks around your neighborhood?

    He cited 3 reasons; you only responded to the last one.

    You keep trying to make this about privacy, when it’s really about illegal searches and seizures.
    Google can’t arrest me. Target can’t garnish my assets and/or wages. The Constitution limits the rights of the government to take my data precisely because the government has those additional powers.

    (And you need a better credit card company; no reason you should be liable for any of that $14k.)

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  12. Hal_10000 says:

    @DrDaveT:

    And why am I so cavalier about that? Because I’ve got nothing to hide. And even if I did, then the cause for trying to hide something is of my own making.

    Ugh. We all have something to hide. And it’s easy to be cavalier about Patriot Act powers when you’re not the one being prosecuted for drug crimes based on the information obtained under its powers (which is what they have mostly been used for).

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  13. Bob @ Youngstown says:

    @Hal_10000:

    We all have something to hide.

    We all may have something to be ashamed of, but hiding a crime is in itself criminal. If I have done something that is criminal, should I be held responsible for it ?

    you’re not the one being prosecuted for drug crimes

    Right, I’m not being prosecuted for a drug crime, but if I were, and I committed the crime, I should have to be responsible for the consequences and penalties.

    Your argument seems to want to employ the Patriot Act to avoid being responsible for criminal behavior.

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  14. Matt says:

    @michael reynolds: Well I don’t have a twitter or facebook or myspace or foursquare account. I have a gmail account but all they know is my name not even my address.

    It’s quite possible to keep your information private from corporations. You just have to not volunteer it at every corner. Don’t sign up for discount cards with your private information etc.

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  15. Bob @ Youngstown says:

    @Matt: They have your IP address, better than your physical address.

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  16. Matt says:

    @Bob @ Youngstown: No they don’t but I’m not your typical internet user. Even your typical user’s IP doesn’t matter much and in some cases will only tell you what state the person probably lives in (other cases you might get the city). You have to call up the ISP and ask who was using the IP at a specific time before you can find out any useful information from it.

    For example one of the schools I went to had an IP that showed up as Oregon based but the school was physically located in Texas.

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  17. stonetools says:

    Chinese Hackers Hack into Federal Government Accounts

    U.S. officials said hackers in China launched a massive cyberattack on the federal agency responsible for collecting background information on, and issuing security clearances for millions of government employees.

    The Office of Personnel Management (OPM) said Thursday as many as 4 million current and former federal employees may have been affected. It said that number could go higher as the investigation continues.

    This is why the NSA is going to continue maintain surveillance, in spite of people hyperventilating about whether we are keeping our telephone records secret. There are actually real threats out there and the least of these is NSA abuse.

    And those drone strikes? One of the reasons why I think the emergency has passed is that the drone campaign has al Queda on the run-so much so that they can’t plan and carry out the kind of attacks that can kill 3000 Americans at a time. That is why we can give up on the not very effective data mining approach. We executed a better, and unfortunately much bloodier, strategy.

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  18. Bob @ Youngstown says:

    @Matt:
    Matt, you are welcome to believe what you wish.
    My IP address points to a service provider in another state, however an acquaintance demonstrated to me that he could (and did) get my physical address armed with an IP.

    That was all the convincing that I needed.

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  19. Matt says:

    @Bob @ Youngstown: I’m currently finishing off my degrees in electrical engineer. I’ve been involved with computers and networking for over 20 years now. I have been involved with setting up networks and servers for multimillion dollar corporations.

    I’m certain at this point either you’re lying or something is going on that you’re not telling. IPs are just lists of numbers that your service provide bought in a chunk from Arin. The information in the whois will be whatever the provider (ISP in your case) tells Arin. The city of the IP is the best you can get unless you call the ISP to find out who was using the IP at that time.

    Here’s my real IP no proxies etc. I dare you to tell me my address without calling up my ISP and social hacking. If you’re worried about james or the mods then you can just say the street name.

    24.155.110.52

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