The U.S. Senate is under pressure to settle the debate over whether H.R. 2048, also known as the USA Freedom Act, will be approved to stop the collection of bulk phone records by the federal government under Section 215 of the Patriot Act.
But it is not an “either, or” decision. There are other alternatives. The Senate could also decide to extend Section 215. Or the Senate might choose to let Section 215 expire and replace it with nothing.
It’s not unlike the dilemma that faced Goldilocks. Three choices and she was hungry.
The Senate is under real pressure, too. There are less than two weeks to go before the existing law authorizing the National Security Agency’s metadata collection expires.
The House approved the USA Freedom Act this month by a 338-88 vote. It would stop the NSA from collecting bulk metadata of phone numbers that are dialed and when the calls are placed.
The debate to come in the Senate should sound much like the discourse that played out in the House.
Proponents in the House said the USA Freedom Act was right in line with the U.S. Second Circuit Court of Appeals ruling a week earlier that found the NSA’s metadata collection program was not authorized by Section 215 of the Patriot Act.
Rep. John Conyers (D-Mich.), who co-sponsored the legislation, promised during the short (one-hour) debate the USA Freedom Act would “end dragnet surveillance” in the U.S.
However, Rep. Justin Amash (R-Mich.), who has become one of the firebrands leading what he sees as a fight to protect the privacy of Americans under the Fourth Amendment, doesn’t think the 2015 version of the USA Freedom Act goes nearly far enough.
He is afraid the USA Freedom Act, as approved by the House, could also unleash a monster of unconstitutional surveillance that could do more damage than Section 215.
Amash said that while H.R. 2048 would limit bulk collection of Americans’ digital records, it would not end the practice.
“It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data,” Amash wrote on his Facebook page.
Rep. Steve King (R-Iowa) said he understood why people are concerned about a government invasion of their privacy though the bulk collection of phone records. King said he shared that concern but still voted against H.R. 2048 because he is so concerned by the threat of terrorism.
He wants Section 215 to be re-authorized.
“ISIS just attacked Americans in Texas on May 3, 2015,” King said in a statement following House approval of H.R. 2048. “Five days later, FBI Director James Comey sounded the alarm claiming hundreds and maybe thousands of people across the country are under the sway of the brutal terrorist group.”
“Any overhaul of our surveillance apparatus must include proper consideration of how to maintain access to the valuable data our intelligence community requires to investigate and preempt terrorist attacks,” King added.
Now the debate goes to the Senate.
The three Republicans who have publicly declared they would rather be in the White House than the Senate are equally divided in this three-sided debate.
One says the porridge is too hot, another says it is too cold, and another believes it is just right.
Sen. Marco Rubio (R-Fla.) wrote in a USA Today op-ed that he does not want to see Section 215 of the Patriot Act trashed. He doesn’t think the USA Freedom Act goes far enough to protect American lives.
“Today our nation faces a greater threat of terrorist attack than any time since Sept. 11, 2001. Because of the dedicated work of U.S. intelligence, military and law enforcement personnel, Americans have been largely kept safe for almost 14 years,” Rubio wrote. “Despite recent court rulings, this program has not been found unconstitutional, and the courts have not ordered a halt to the program.”
But Sen. Ted Cruz (R-Texas) has called for passage of the USA Freedom Act, which he co-sponsored.
“The (Second Circuit Court’s) ruling confirms what the American public already knew: The National Security Agency’s data collection program went too far in collecting the phone records of Americans,” said Cruz.
“The USA Freedom Act ends the NSA’s unfettered data collection program once and for all, while at the same time preserving the government’s ability to obtain information to track down terrorists when it has sufficient justification and support for doing so.”
But Rand Paul, the third Republican senator running for the GOP presidential nomination, wrote in Time “the Washington machine” must be stopped from collecting personal phone records.
He doesn’t like the USA Freedom Act, agreeing with Amash that it might work out to be even worse for Americans’ privacy than Section 215 of the Patriot Act. He also wants Congress to repeal Section 215 of the Patriot Act.
“Senator [Ron] Wyden [D-Ore.] and myself have a simpler approach to the problem. We simply ban the collection of phone records and do not replace it with an alternative collection system,” wrote Paul.
“The sacrifice of our personal liberty for security is and will forever be a false choice, and I refuse to relinquish our Constitutional rights to opportunistic and overreaching politicians.”
As an alternative to the USA Freedom Act, Majority Leader Mitch McConnell and Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, have introduced legislation that provides for a clean reauthorization of Section 215.
“H.R. 2048 undercuts the Intelligence Community’s capability to stop terrorist attacks here and abroad,” said Burr. “As terror groups such as the Islamic State and Al-Qaida grow in number, capability, and technical sophistication, now is not the time to turn to an untested, unproven proposal as the House has done today.”
“Simply put, H.R. 2048 is trying to fix a system that isn’t broken.”