Read this first! Here’s what’s happened with the controversial Patriot Act program Section 215 last night

After years of using delaying tactics and last minute deadlines to push last minute Senate votes, Mitch McConnell’s attempt to use building deadline pressure to extend, with some modification, three of the more controversial Patriot Act provisions failed late Sunday night. The bill to do so is the USA Freedom Act. It is still likely to pass on Wednesday.

Rand Paul used parliamentary rules to disrupt the vote and debate pushed beyond midnight, forcing the government to shut down:

NSA bulk data collection (the now infamous Section 215 which allows, among other things, collections of photos of your dick, to paraphrase John Oliver)

Roving wiretap provisions, which allow the government to move warrants for wiretaps from device to device when subjects frequently switch through burner phones.

Lone Wolf provisions, which allow the government to use the full might of the national security apparatus against individuals with no connections to foreign terror groups but who the NSA might believe are inspired by organizations such as ISIS.

The USA Freedom Act would have extended the last two programs without modification and applied modification to Section 215 in a Presidentially-approved plan.

Who wanted it to pass?

Most Republicans in the Senate, the Obama administration. Notables: Attorney General Loretta Lynch, who called this a “serious lapse”. Director of National Intelligence James Clapper who said:

[The United States] “would lose entirely an important capability that helps us identify potential U.S. based associates of foreign terrorists.”

CIA Director John Brennan, who said that ending the program is “something that we can’t afford to do right now.”

Why shouldn’t these provisions go on?

Consider these quotes from CNN’s coverage:

“As it stands, several official review boards — including a presidential review group and a government privacy oversight board — found that the bulk metadata collection program was not essential to thwarting a single terror plot.”
“The roving wiretaps provision that can be used in terrorism cases is used less than 100 times per year, but officials could be in a bind when it comes to new investigations.”
“Officials say the rising threat of lone wolves — including those inspired by ISIS, but not ordered — raises the need to maintain that provision of the Patriot Act.
“But they concede the provision had not been used, even as the FBI has increasingly focused its efforts on lone wolves.”
“Allowing the provisions of the Patriot Act to sunset wouldn’t affect the government’s ability to conduct targeted investigations or combat terrorism,” the ACLU said. “The government has numerous other tools, including administrative and grand jury subpoenas, which would enable it to gather necessary information.”

And from USA Today:

“A three-judge federal appeals court ruled in May that the NSA’s bulk collection of phone data is illegal and is not what Congress intended when it passed the Patriot Act after the 9/11 terrorist attacks.”
“The people who argue that the world will come to an end and we will be overrun by jihadists (by not passing the bill) are using fear,” — Rand Paul

What’s next?

The USA Freedom Act is still expected to pass on Wednesday. If it does the Lone Wolf and roving wiretap provisions will come back into being with no alterations. Section 215 will change.

With the act’s alterations the Section 215 portion of the US Patriot Act will instead force communication companies to gather and store customer information and would require the government to then get a search warrant to access it. It will also force a more public record of the mostly unseen FISA Court process and FBI requests for data accompanied by gag orders.

Additionally, it would allow companies to more fully report on government requests.

Is there anything advocates would like the Freedom Act to do that it does not?

From the EFF:

“First and foremost, the USA FREEDOM Act of 2014 does not adequately address Section 702 of the FISA Amendments Act, the problematic 2008 law that the government argues gives it the right to engage in mass Internet surveillance. We remain committed to reform of Section 702. We intend to pursue further reforms to end the NSA’s abuse of this authority.
“The legislation also does not affect Executive Order 12333, which has been interpreted by the NSA to allow extensive spying both on foreigners and U.S. citizens abroad. Strictly speaking, we don’t need Congress to fix this — the President could do it himself — but legislation would ensure that a later President couldn’t reinstate 12333 on her or his own.
“The legislation may not completely end suspicionless surveillance. With respect to call detail records, it allows the NSA to get a second set of records (a second “hop”) with an undefined “direct connection” to the first specific selection term. ”

Read all about it in my archives collection on this topic.

Originally published at