Senate Intelligence Chairman Richard Burr (R-NC)
has rejected the House USA Freedom Act which passed on Wednesday, imposing some limits on the NSA's bulk collection of all of our cellphone metadata. Burr continues to insist that the Senate will take up a clean reauthorization of the PATRIOT Act, and the only concession he's giving now will be a shorter extension than the five-and-a-half years in the current proposal.
[H]e reiterated that the base bill on the Senate floor will be a clean extension of existing authorities, not the bipartisan compromise known as the USA Freedom Act that passed the House with 338 yes votes and lines up with a Senate proposal spearheaded by Sens. Mike Lee, R-Utah, and Patrick J. Leahy, D-Vt.
"I think it's clear to say that the program as designed is effective, and members are reluctant to change things that are effective just because of public opinion," Burr said. "We've got a program that has never had one breach of personal privacy, and there's really no compelling reason to change the structure of the program other than that the public is uncomfortable with it."
Apparently, Burr doesn't believe that a federal appeals court ruling saying that the program is not authorized by the current law is a compelling reason to change it. What does the
lawyer who argued the case challenging bulk collection say about what that ruling means to the program?
The ruling means that even if Congress reauthorizes Section 215 by June 1, the government will have to discontinue bulk collection under that provision unless Congress adds language expressly authorizing bulk collection or the government prevails on the Supreme Court to vacate the ruling. That the Second Circuit declined to enjoin the call records program is immaterial. If Congress reauthorizes Section 215 in its current form, the district court will likely issue an injunction. Even without an injunction, telecommunications providers may begin to resist compliance with production demands.
The ruling means that the government will have to reconsider other bulk collection programs that are operated under other authorities but predicated on the same now-discredited theory of “relevance.” We know the DEA had a bulk call records program until 2013. We know the NSA was collecting Internet metadata in bulk until 2011. In what contexts the government is engaging in bulk collection now is not entirely clear, but news reports indicate that there are other bulk collection programs that haven’t yet been officially acknowledged. If the government is operating other bulk collection programs — or even “bulky” collection programs — it will now have to reconsider them.
There is not support in the Senate or in the House to add language that would authorize bulk collection. But the court had a warning about that eventuality too, by
its discomfort with the constitutionality of the whole idea of bulk collection. Remember, this decision was decided on statutory grounds—the law as written doesn't authorize bulk collection—but the court made it very clear that it expects Congress to respect the Constitution in addressing the law and left the possibility of a constitutional ruling wide open. Burr's position is simply not tenable.
Tell Congress to let bulk collection of our metadata and other PATRIOT Act provisions expire.