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| Clock winds down on key NSA surveillance law – live updates | Clock winds down on key NSA surveillance law – live updates |
| (35 minutes later) | |
| 12.23pm ET17:23 | |
| Whatever happens today in the Senate with the Patriot Act, minority leader Harry Reid will not become a lobbyist upon retiring in 2016, he says, convincingly. | |
| “I would rather be taken to Singapore and caned,” he told Politico. | |
| I was just being honest. http://t.co/gtQKXfqMdS | |
| (h/t: @holpuch) | |
| 12.04pm ET17:04 | |
| Bruce Schneier, the national security expert, quotes the ACLU’s Christopher Soghoian on how the current debate over bulk US phone data collection is actually a debate over a “very narrow usage” of Section 215: | |
| There were 180 orders authorized last year by the FISA Court under Section 215 -- 180 orders issued by this court. Only five of those orders relate to the telephony metadata program. There are 175 orders about completely separate things. In six weeks, Congress will either reauthorize this statute or let it expire, and we’re having a debate - to the extent we’re even having a debate - but the debate that’s taking place is focused on five of the 180, and there’s no debate at all about the other 175 orders. [...] | |
| We have not had a debate about surveillance requests, bulk orders to calling card companies, to Skype, to voice over Internet protocol companies. Now, if NSA isn’t collecting those records, they’re not doing their job. I actually think that that’s where the most useful data is. But why are we having this debate about these records that don’t contain a lot of calls to Somalia when we should be having a debate about the records that do contain calls to Somalia and do contain records of e-mails and instant messages and searches and people posting inflammatory videos to YouTube? | |
| Read the full conversation here. | |
| 11.57am ET16:57 | |
| 11.56am ET16:56 | |
| Richard Burr, the intelligence committee chairman in the Senate, has sent up a trial balloon on surveillance, reports Guardian national security editor Spencer Ackerman (@attackerman): | |
| If the maximal position he and Mitch McConnell favor (re-up all existing surveillance powers) won’t fly, he proposes, how about delaying the divestiture of NSA’s bulk US phone records databases for two years? Burr argues that will have the technocratic benefit of easing the transition to the heretofore-untested regime under the Freedom Act, whereby the NSA will present telecos with a Fisa Court order when it has “reasonable articulable suspicion” to get phone records (and lots of them). | |
| To which the House of Representatives’ architects of the Freedom Act breathe a deep and exhausted sigh. | |
| Just pass the Freedom Act already, say Republicans Robert Goodlatte and Jim Sensenbrenner and Democrats John Conyers and Jerry Nadler in a Friday statement, as Burr doesn’t even have the backing of the NSA on this. From that statement: | |
| ...Importantly, the National Security Agency has said that the 180-day transition period contained in the bill is enough time to get the new call detail record program up and running. | |
| The House of Representatives has now acted twice to reform our intelligence-gathering programs, making sure it protects Americans’ liberties and our national security, but the Senate has failed to act. The Senate should immediately pass this bipartisan bill instead of hastily and irresponsibly trying to scramble something together in the eleventh hour. The short-term extensions and other proposals being discussed in the Senate don’t have the support to pass in the House of Representatives. The Second Circuit Court of Appeals has already ruled the bulk collection program as unlawful and extending it any further is unacceptable. | |
| The House has thus far shown unity in its insistence that the Senate leadership’s surveillance gambles are futile, writes Spencer: | |
| From Speaker John Boehner on down, it considers its 338-88 vote for the Freedom Act to be its last word on surveillance for the time being. Nothing McConnell and Burr want to do can happen without House support, and that support appears to be in short supply. | |
| 11.54am ET16:54 | |
| Happy Memorial Day! | |
| The State Department will release Hillary Clinton's Benghazi emails at 12:30 pm. | |
| That’s not narrowly surveillance-law related – apologies to the purists. | |
| 11.50am ET16:50 | |
| The Obama administration has come to the defense of the Patriot Act, asking legislators to make every effort to preserve bulk US phone data collection. | |
| First up this morning was Loretta Lynch, the newly minted attorney general, in the first interview of her tenure. | |
| “Our biggest fear is that we will lose important eyes on people who have made it clear that their mission is to harm American people here and abroad,” Lynch told CBS News. | |
| The journalist Marcy Wheeler notes that, in her defense of the Patriot Act, Lynch said Section 215 allows the government to “intercept communications,” as opposed to metadata. Usually that’s what Patriot defenders accuse Patriot opponents of claiming. | |
| I finally found someone claiming Section 215 permits govt to "intercept communications"! https://t.co/ZvtY2EMTT2 pic.twitter.com/Jw20bgCUgJ | |
| Also this morning, White House spokesman Eric Schultz shared a Los Angeles times story outlining other NSA programs conducted under Section 215 of the Patriot Act and now threatened with elimination: | |
| Senate dispute over NSA data collection threatens to shut other spy programs http://t.co/3S9IXLnS7n via @LisaMascaro | |
| The Guardian’s Spencer Ackerman (@attackerman) wrote Thursday about a new justice department report describing how Section 215 had been used: | |
| But a Justice Department inspector general’s report finally released on Thursday covering the FBI’s use of Section 215 from 2007 to 2009 found that the bureau is using the business-records authority “to obtain large collections of metadata”, such as “electronic communication transactional information”. | |
| The specifics of that collection – which civil libertarians have called “bulky”, to signal that it is not bulk collection but not far off – are not provided in the redacted report. Yet electronic communication transactional information is likely to refer to records of emails, instant messages, texts and perhaps Internet Protocol addresses. Sections of the report refer to the FBI asking for “material related to internet activity” and mention “IP addresses and to/from entries in emails”. [...] | |
| Privacy advocates seized on the report to argue, echoing Senator Rand Paul in his Wednesday filibuster, that the time has come to abandon all of Section 215, not just the bulk collection provision that a federal appeals court has already deemed illegal. | |
| Read the full piece here. | |
| 11.28am ET16:28 | 11.28am ET16:28 |
| The Guardian’s Ben Jacobs has his eyes trained on the Senate floor, where the debate over government surveillance... isn’t happening at the moment, as the chamber plods through amendments to the trade bill. | The Guardian’s Ben Jacobs has his eyes trained on the Senate floor, where the debate over government surveillance... isn’t happening at the moment, as the chamber plods through amendments to the trade bill. |
| Bob Corker is now calling the currency manipulation amendment a second bailout to the auto industry | Bob Corker is now calling the currency manipulation amendment a second bailout to the auto industry |
| 11.19am ET16:19 | 11.19am ET16:19 |
| Key conservative think tank supports House bill | Key conservative think tank supports House bill |
| Perhaps the most influential think tank for Congressional Republicans has come out with a grudging endorsement of the USA Freedom Act, Guardian national security editor Spencer Ackerman (@attackerman) writes: | Perhaps the most influential think tank for Congressional Republicans has come out with a grudging endorsement of the USA Freedom Act, Guardian national security editor Spencer Ackerman (@attackerman) writes: |
| The Heritage Foundation’s position, released amidst widespread confusion and speculation about what the Senate will actually do on surveillance, is long, convoluted and mealy-mouthed. But it places the Freedom Act, which jettisons bulk domestic phone collection while keeping the rather bulky remainder of an expiring provision of the Patriot Act, in the context of vigilance against terrorism and respect for civil liberties, the sweet spot for wavering conservatives. | The Heritage Foundation’s position, released amidst widespread confusion and speculation about what the Senate will actually do on surveillance, is long, convoluted and mealy-mouthed. But it places the Freedom Act, which jettisons bulk domestic phone collection while keeping the rather bulky remainder of an expiring provision of the Patriot Act, in the context of vigilance against terrorism and respect for civil liberties, the sweet spot for wavering conservatives. |
| Heritage’s account of bulk domestic phone surveillance’s demonstrated utility against terrorism at times becomes dubious. The phrase “contributed to” has to carry a ton of freight for its contention “the authorities under Section 215 and 702 of the PATRIOT Act has contributed to thwarting 54 total international terrorist plots in 20 countries” to be true. | Heritage’s account of bulk domestic phone surveillance’s demonstrated utility against terrorism at times becomes dubious. The phrase “contributed to” has to carry a ton of freight for its contention “the authorities under Section 215 and 702 of the PATRIOT Act has contributed to thwarting 54 total international terrorist plots in 20 countries” to be true. |
| Ultimately, however, Heritage considers the surveillance-reform bill to be the viable option the alternatives it considers aren’t, Spencer writes. Spencer quotes from the Heritage statement: | Ultimately, however, Heritage considers the surveillance-reform bill to be the viable option the alternatives it considers aren’t, Spencer writes. Spencer quotes from the Heritage statement: |
| The Act is the only legislative vehicle that has passed a chamber of Congress. It is not perfect and could be improved. For example, there should be a uniform period of time for carriers to maintain the telephone metadata. Another could be designating a specific format in which the carriers must maintain the data to allow more expeditious analysis once the data is appropriately obtained. The USA FREEDOM Act strikes a balance between maintaining our national security capabilities and protecting privacy and civil liberties, and this should always be the goal. | The Act is the only legislative vehicle that has passed a chamber of Congress. It is not perfect and could be improved. For example, there should be a uniform period of time for carriers to maintain the telephone metadata. Another could be designating a specific format in which the carriers must maintain the data to allow more expeditious analysis once the data is appropriately obtained. The USA FREEDOM Act strikes a balance between maintaining our national security capabilities and protecting privacy and civil liberties, and this should always be the goal. |
| Mitch McConnell, the Senate majority leader, wants to preserve all current surveillance powers, either for several years or, if necessary, several weeks, to buy time until he can come up with a majority coalition, Spencer continues: | Mitch McConnell, the Senate majority leader, wants to preserve all current surveillance powers, either for several years or, if necessary, several weeks, to buy time until he can come up with a majority coalition, Spencer continues: |
| Heritage, striking a sympathetic tone to McConnell, gently replies that since the 2nd Circuit Court of Appeals has ruled bulk collection illegal, McConnell’s proposal would “likely result in the federal district court judge who now has the case enjoining the government from continuing the program.” | Heritage, striking a sympathetic tone to McConnell, gently replies that since the 2nd Circuit Court of Appeals has ruled bulk collection illegal, McConnell’s proposal would “likely result in the federal district court judge who now has the case enjoining the government from continuing the program.” |
| McConnell could still pull this out. The Freedom Act could still lose – but if it does, all of the expiring sections of the Patriot Act are lost with it, leading to an outcome McConnell really doesn’t want; something civil libertarians have dreamed about for 15 years; and the FBI losing a broad communications surveillance power currently masquerading as a records-collection power. | McConnell could still pull this out. The Freedom Act could still lose – but if it does, all of the expiring sections of the Patriot Act are lost with it, leading to an outcome McConnell really doesn’t want; something civil libertarians have dreamed about for 15 years; and the FBI losing a broad communications surveillance power currently masquerading as a records-collection power. |
| Expect McConnell’s opponents, both Democrats and Republicans, to use Heritage’s imprimatur as a cudgel against him. | Expect McConnell’s opponents, both Democrats and Republicans, to use Heritage’s imprimatur as a cudgel against him. |
| 10.50am ET15:50 | 10.50am ET15:50 |
| Good morning and welcome to our live blog coverage of what could be the demise of surveillance law as we know it – barring a last-minute move from the Senate. | Good morning and welcome to our live blog coverage of what could be the demise of surveillance law as we know it – barring a last-minute move from the Senate. |
| Republican majority leader Mitch McConnell has been looking for a way to extend a key provision of the Patriot Act, known as Section 215, before the Senate breaks for the Memorial Day holiday (the recess is supposed to begin today, although they could go into the weekend). | Republican majority leader Mitch McConnell has been looking for a way to extend a key provision of the Patriot Act, known as Section 215, before the Senate breaks for the Memorial Day holiday (the recess is supposed to begin today, although they could go into the weekend). |
| The legislators are not scheduled to come back until 1 June, hours past a midnight deadline for Section 215 to expire. | The legislators are not scheduled to come back until 1 June, hours past a midnight deadline for Section 215 to expire. |
| Since 2006, the NSA has secretly used Section 215 to collect US phone data in bulk. The statute also permits the FBI to collect business records or other “tangible things” deemed relevant to an ongoing counter-terrorism or espionage investigation. | Since 2006, the NSA has secretly used Section 215 to collect US phone data in bulk. The statute also permits the FBI to collect business records or other “tangible things” deemed relevant to an ongoing counter-terrorism or espionage investigation. |
| Surveillance hawks warn that the loss of 215 would dangerously cripple the government’s intelligence-collection ability. Skeptics point out that independent reviews have not found any instances of the program stopping a terror plot and say it infringes privacy. | Surveillance hawks warn that the loss of 215 would dangerously cripple the government’s intelligence-collection ability. Skeptics point out that independent reviews have not found any instances of the program stopping a terror plot and say it infringes privacy. |
| Can McConnell slip a temporary extension through? The majority leader is facing a time crunch, with a bill to boost the president’s trade-negotiating authority also on the docket. | Can McConnell slip a temporary extension through? The majority leader is facing a time crunch, with a bill to boost the president’s trade-negotiating authority also on the docket. |
| McConnell also appears to be losing a fight to keep his colleagues from supporting competing surveillance legislation passed overwhelmingly last week in the House. That bill, the USA Freedom Act, would end the bulk collection of phone records. | McConnell also appears to be losing a fight to keep his colleagues from supporting competing surveillance legislation passed overwhelmingly last week in the House. That bill, the USA Freedom Act, would end the bulk collection of phone records. |
| What will McConnell pull out of his hat? | What will McConnell pull out of his hat? |
| Updated at 10.57am ET | Updated at 10.57am ET |