As Patriot Act Expiration Looms, Critics Hope for Sunset on Mass Surveillance

With a deadline for the USA Patriot Act fast approaching, Congress has little time to decide how to proceed—but the call to ‘sunset’ the law is growing. (Photo: Dan Cook/flickr/cc/with overlay)

‘Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.’

By Nadia Prupis and Deirdre Fulton

With the fate of the USA Patriot Act still hanging in the balance late afternoon Friday—and lawmakers eager to leave Washington, D.C., for Memorial Day barbecues and campaign stops in their home states—the chance to see the sun go down on the controversial spying bill is still on the table.

The debate over the Patriot Act is centered around one of its key provisions, Section 215, which is set to expire on June 1 absent congressional action. The U.S. National Security Agency (NSA) previously relied on Section 215 to justify its mass phone data collection operation, but its expiration would force an end to that program.

With that “sunset” approaching, lawmakers have the chance to reform the Patriot Act, end it altogether, or pass a clean re-authorization that renews all the provisions set to expire in mere days.

Senate Majority Leader Mitch McConnell (R-Ky.) is the most outspoken supporter of a clean re-authorization, arguing that the Patriot Act in its current form is a crucial tool in the so-called “War on Terror.” FBI director James Comey also said this week that it would be a “big problem” to lose the authority that the law bestows on the intelligence agencies.

Adding to the urgency is the Obama administration’s warning that Congress only has until Friday to act on the law, because the government will need time to scale down its phone data program if it is not re-authorized. The House of Representatives has already left for the Memorial Day weekend.

The White House, along with the U.S. House, supports reform legislation called the USA Freedom Act, and warned that “there is no Plan B, these are authorities Congress must legislate.”

Should the Senate fail to pass the reform bill, said White House press secretary Josh Earnest on Friday, there is nothing the president can do to stop the Patriot Act provisions from lapsing.

Of course, that would be just fine with privacy activists and advocacy groups who oppose intrusive government surveillance. At protests held in dozens of cities on Thursday, demonstrators called on Congress to oppose any re-authorization of the Patriot Act and instead let its spying provisions sunset as scheduled on June 1.

“It’s time we came together and let the sun go down on this dark age of government surveillance,” said Fight for the Future campaign director Evan Greer. “Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.”

Free Press Action Fund government relations manager Sandra Fulton added, “The nationwide sunset vigils have sent a signal to Washington: It’s time we closed this chapter on mass surveillance and restored everyone’s rights to connect and communicate in private.”

However, The Hill reported Friday that “momentum appeared to be on the side of reformers, whose hopes were buoyed by the near certainty that the Senate will either need to pass [the House version of] the USA Freedom Act, or allow three parts of the post-9/11 law to sunset.”

The report went on to say the USA Freedom Act “has the backing of the majority of the Senate—including all Democrats—but it remains unclear whether it has the 60 votes necessary to overcome procedural hurdles during what increasingly looks like a rare Memorial Day weekend session.”

The USA Freedom Act passed the House on May 14 with an overwhelming 338-88 vote. But according to advocacy groups like the Electronic Frontier Foundation, the USA Freedom Act is a “small step instead of a giant leap,” particularly in comparison with previous iterations of the bill, introduced in 2013 and 2014, which offered stronger reforms but failed to progress through Congress.

The Act grants a five-year extension to Section 215.

After the bill passed the House, Tiffiniy Cheng, co-founder of Fight for the Future, warned that the USA Freedom Act would actually “expand the scope of surveillance” by the NSA and others.

“This is a fake privacy bill,” Cheng said. “Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as ‘USA Freedom.’ This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems.”

Opposition to the Patriot Act has grown steadily since whistleblower Edward Snowden in 2013 revealed Section 215’s role in the NSA spying program. The call to let the provision expire only grew after a federal appeals court ruled earlier this month that the agency’s phone surveillance operation is illegal. And as Mike Masnick at Techdirt points out, a Justice Department investigation into the FBI’s use of Section 215, released Thursday, found that the provision has never been particularly useful in anti-terrorism efforts.

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DNI Clapper’s Lawyer Claiming Clapper Lied To Congress Because He ‘Forgot’ About NSA Program

From the Department of you can’t be serious. The top lawyer for Director of National Intelligence James Clapper is making a novel argument as to why Clapper did not technically commit perjury despite saying something he knew to be untrue while testifying under oath before Congress – Clapper somehow “forgot” about a massive and highly controversial secret spying program he oversees. 

Yes, you read that right. The general counsel for the Office of the Director of National Intelligence, Robert Litt, is trying to get his boss out of trouble by claiming that the DNI had some kind of epic brain fart while testifying before Congress. Litt’s explanation is that Clapper “mistakenly” thought he was not running a global dragnet program that was vacuuming up private data from American citizens without a warrant when asked by Senator Wyden in a hearing before the Senate Intelligence Committee if he was doing just that.

Seriously, this is the current explanation.

Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer. He just forgot. 

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday. “We all make mistakes.”

Slow clap for Clapper and his intrepid legal team. But just when you thought it could not get any more absurd you remember that Clapper had a completely different explanation for why he lied to Congress just after the Snowden leaks came out. Clapper’s first explanation for lying was not that he made a mistake but that he had strategically looked for the “least untruthful” answer to give without damaging intelligence operations.

So did he forget or did he lie to Congress under oath for what he believed was a good cause?

Obama And Clinton Endorse USA Freedom Act After Court Ruling

In the aftermath of yesterday’s court ruling and the looming June 1st deadline to reauthorize the section of the PATRIOT Act the court ruled illegal, the Democratic Party establishment appears to have shifted somewhat on domestic spying. President Barack Obama, through a White House spokesman, has said he supports the USA Freedom Act – which would reform the phone collection program.

Hillary Clinton also endorsed the NSA reform bill tweeting: “Congress should move ahead now with the USA Freedom Act—a good step forward in ongoing efforts to protect our security & civil liberties.”

One of the USA Freedom Act’s biggest promoters is Congressman Jim Sensenbrenner who helped author the PATRIOT Act. Sensenbrenner has been adamant post-Snowden that the NSA was never given the powers it was using under the bill he helped write. After the court decision Sensenbrenner reaffirmed his view saying that Congress never intended Section 215 to authorize bulk collection of phone records and that “This program is illegal and based on a blatant misinterpretation of the law. It’s time for Congress to pass the USA Freedom Act in order to protect both civil liberties and national security with legally authorized surveillance.”

But the USA Freedom Act is by no means fundamental reform. While the bill would reform NSA’s bulk collection practices domestically it would leave in place the massive spying apparatus along with the unrestricted information warfare overseas that will inevitably lead to the agency vacuuming up US citizen’s data.

The truth likely is that as long as the US maintains its national security state mentality and massively funds permanent agencies of war like the NSA there will always be these kind of abuses. Ultimately, the greatest impact from the Snowden disclosures may be the public being more vigilant with their private information and more skeptical of the state’s claims regarding power.