With Reform Bill Dead, NSA Set to Lose Some Surveillance Powers in June

After a bill to overhaul the National Security Agency’s intelligence operations didn’t move forward in the Senate Tuesday night, a congressional source close to efforts to pass it said that Congress must renew authorities contained in the bill or the NSA would lose some surveillance capabilities.

On June 1, the NSA will lose the authority to access bulk phone records. Under the USA Freedom Act, these records would have stayed in the hands of phone companies and the NSA would have needed a court order to access them. The bill also would reauthorize the so-called lone-wolf provision, which allows surveillance of individuals engaged in terrorism, and the roving wiretap provision, which permits continuous phone surveillance.

These expiring provisions were originally included in the 2001 Patriot Act.

"Something has to happen before June or the intelligence agencies will lose these authorities," the source told Foreign Policy. "Whether that reform is some reinvention of the USA Freedom Act or whether they try to do a clean [reintroduction of the bill], we don’t know yet."

It remains to be seen whether a Republican-controlled Senate would reconsider a second NSA reform effort. The bill, which passed the House in the summer, was defeated because many in the GOP argued that it would gut the NSA’s ability to conduct surveillance and put Americans at risk. Republican Sen. Mitch McConnell of Kentucky, who is set to become Senate majority leader in January, voted against the move.

Technically, lawmakers were not voting on the bill itself but on a procedural motion, the defeat of which has the practical effect of killing the legislation.  

"God forbid we wake up tomorrow and ISIL is in the United States," Florida Republican Sen. Marco Rubio said from the Senate floor Wednesday, using an alternate acronym for the self-proclaimed Islamic State.

Sen. Patrick Leahy (D-Vt.), who championed the unexpected push to pass the bill during the lame-duck session, accused the GOP of using "scare tactics" to defeat the bill.

"Obviously I’m disappointed by tonight’s vote," Leahy said after the Senate refused to invoke cloture, a parliamentary procedure that would have opened debate on the legislation. "I will continue to fight to preserve our Constitution and our rights as Americans."

For now, Wednesday’s vote brings an end to the political debate over revelations made by onetime NSA contractor Edward Snowden some 18 months ago. The bill had widespread support from the White House, technology companies, and civil liberty advocates, and seemed to have picked up steam suddenly. 

"We are disappointed that the Senate has failed to advance the USA Freedom Act, a good start for bipartisan surveillance reform that should have passed the Senate," the Electronic Frontier Foundation stated after the cloture vote. 

The bill was authored by Leahy and Rep. Jim Sensenbrenner (R-Wis.).