Senate Fails To Pass Both USA Freedom And PATRIOT Act Extension, Setting Up Possible Expiration Of Section 215

from the the-drama-rises dept

Sat, May 23rd 2015 6:55am — Mike Masnick

Well, well. Here's a quick (rare) Saturday post just to get folks up to speed on what happened late last night. After going back and forth for a while, the Senate voted on... and failed to approve both a version of the USA Freedom Act and a short "clean extension" of the clauses of the PATRIOT Act that were set to expire -- mainly Section 215 which some (falsely) believe enables the NSA to collect bulk metadata from telcos (and potentially others). What this means is that it is much more likely that Section 215 expires entirely. The Senate has since left town, though it plans to come back next Sunday, May 31st to see if it can hammer out some sort of agreement. Though, beware of false compromises, such as those being pushed by Senate Intelligence Committee (and big time NSA supporter), Richard Burr. His "hastily introduced" bill pretends to try to "bridge the gap" but in actuality is much worse than basically anything else on the table.

Oftentimes when things like this happen, it's all political theater -- with Senators appearing to "take stands" on key issues to please constituents. This time, however, there does seem to be genuine confusion as to where this is all going to end up. Next week ought to be fairly interesting...

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: mitch mcconnell, patriot act, rand paul, richard burr, section 215, senate, usa freedom act

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

CK20XX (profile), 23 May 2015 @ 7:42am

On top of that...
Apparently there's a "land mine" in the fast-track trade bill. A section of it is designed to crack down on human trafficking, and the White House considers that section a deal breaker because it would force Malaysia out of the TPP, thanks to its love of modern day slavery and all. Because of this, the fast-track bill needs to either be amended by the House and sent back to the Senate, or passed so the House can go to conference with the Senate. Thanks to the upcoming summer recess and subsequent presidential campaign season though, there may not be enough time to do either.
[ link to this | view in thread ]
HegemonicDistortion (profile), 23 May 2015 @ 7:49am

My one concern with letting it expire right now is whether courts will dismiss current challenges to bulk collection as moot. I'd like to see the constitutional issues decided by the Supreme Court. Of course that may be a fool's wish if the Court were to uphold it, but I think a majority of the current Court would strike down bulk collection.

Or, hopefully current cases (especially for programs like PRISM, xkeyscore, etc.) could proceed as challenges to EO 12333.
[ link to this | view in thread ]
David, 23 May 2015 @ 8:07am

Shrug
I should be surprised if the end result isn't at best only marginally different from the worst conceivable outcome.

More likely than not this will end up being the pig of Burr with lipstick on. And it will be discovered afterwards that it was poisonous lipstick, too.

This is Senate, after all.
[ link to this | view in thread ]
cypherspace (profile), 23 May 2015 @ 8:25am

Re: On top of that...
Apparently Bob Menendez added this provision as a parting shot against the Administration for indicting him on corruption charges - which may or may not be retaliation for Menendez's support for more sanctions during the Iran nuclear negotiations. Better the elites fight with one another than we the people, I suppose...
[ link to this | view in thread ]
cypherspace (profile), 23 May 2015 @ 8:27am

Re: Shrug
Just wear rubber lips!
...did I just really reference Batman & Robin? I think I'll go hide now.
[ link to this | view in thread ]
CK20XX (profile), 23 May 2015 @ 8:33am

Re: Re: On top of that...
It's as if good will always win because evil is dumb.
[ link to this | view in thread ]
kenichi tanaka (profile), 23 May 2015 @ 9:10am

Democrats and Republicans are vulnerable regarding The Patriot Act because Americans are tired of having their constitutional rights abused and we no longer need The Patriot Act, considering how it was originally supposed to sunset, or expire, back in 2005.

Exactly how many terrorists has the federal government captured since 2005, within the borders of the United States? Not enough to continue the act. Americans are more aware today then they were 10 years ago.

With election season coming up fast, every politician in congress is vulnerable if they vote to pass anything related to The Patriot Act and it's a sensitive issue, with many Americans and many civil rights groups opposing it.

Where it stands now, congress needs to let The Patriot Act expire and leave it buried in the ground. Otherwise, a lot of Democrats and Republicans will be in danger of losing their seats if they vote for passage.

"Terrorist" seems to be a new boogeyman threat whenever our government in danger of losing the powers granted under The Patriot Act. Its time that our representatives in congress start listening to the will of the people.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2015 @ 9:49am

Wouldn't it be hilarious if McConnel's insistance to not even pass the minor reform in the USA Freedom Act would mean the whole 215 gets scrapped?!

I sure hope so, but there will be one last push on May 31 to pass it and I fear they will pass it. We need to keep calling Senators to tell them to reject the extension.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2015 @ 10:28am

The NSA has files on everyone, Congress and Courts included. Congress will do what they are told to. If by chance the extension dies the program names will change and new similar legislation will return before you can spit.
[ link to this | view in thread ]
Who Cares (profile), 23 May 2015 @ 10:51am

I'm curious about Rand Paul.
Will he actually filibuster the 31st or just keep it to the grandstanding he did last week.
[ link to this | view in thread ]
Uriel-238 (profile), 23 May 2015 @ 12:07pm

Pressure from the NSA via biographical leverage
OR...spying will return to the way it was during the cold war, where it's a thing you're not supposed to do (and spying data is inadmissible in court) but everyone does it anyway, and it's appropriately embarrassing when it's discovered.

In the meantime, we proceed to encrypt internet communications end-to-end until they can spy all they want and still have nothing to process, and feed from big bads has to be run through number-crunchers the size of nuclear reactors before they have viable data to process.
[ link to this | view in thread ]
Uriel-238 (profile), 23 May 2015 @ 12:11pm

Rubber Lips
Rubber lips were a protection from poisoned lipstick in Get Smart as well.

Rubber lips were also used by the Joker in The Dark Knight Returns.

It's the old rubber-lips-to-block-the-poison-lipstick trick.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2015 @ 12:20pm

Mike, Thanks for the update. Much appreciated.
[ link to this | view in thread ]
beltorak (profile), 23 May 2015 @ 12:46pm

Re: Pressure from the NSA via biographical leverage
spying data is *currently* not admissible in court, that's the whole reason for parallel construction. and it is almost impossible for the defense to prove.

Agreed. Encrypt all the things. So what's your public key?

Almost no one has any, because that's a pain in the ass. Usability is important too.
[ link to this | view in thread ]
Fail in Homonid Form, 23 May 2015 @ 2:23pm

Re:
This! I feel like there is something we are not seeing, with the 2nd circuit decision basically saying that this is all illegal but we are not going to rule on it because it's expiring anyway, and that congress can explicitly authorize this if it wants to...

I expect something far worse than the patriot act will be passed when they are next in session
[ link to this | view in thread ]
Anonymous Coward, 23 May 2015 @ 4:10pm

Let the whole PAT RIOT Act expire!
[ link to this | view in thread ]
That One Guy (profile), 23 May 2015 @ 6:54pm

Re: On top of that...
I'd love to see them try and spin that one.

"We urge all voting senators and congressmen to reject the amendment added by Mr. Menendez. Human trafficking is bad, there is no doubt, but far worse would be not passing TPP, which stands to benefit the citizens in all the signatory counties. You know, everyone except for the slaves."

'White House comes out in favor of modern day slavery', the headlines would practically write themselves, if the press had the guts to write it.
[ link to this | view in thread ]
mr. sim (profile), 23 May 2015 @ 7:12pm

i don't know whether to say "hell just froze over" or to worry this is a omen of something worse is coming.
[ link to this | view in thread ]
Code Blue is my love child, 23 May 2015 @ 8:36pm

its not going to sunset
If people want a tracking, line by line analysis of this crap.. emptywheel is your go to

https://www.emptywheel.net/
[ link to this | view in thread ]
Anonymous Coward, 24 May 2015 @ 4:02am

don't worry spooks, they passed the TPP.. that one has more than enough provisions to cover all that section 215 and you get even more included in the TPP.

/sarcasm... or sad but true. take your pick. (i'd pick both)
[ link to this | view in thread ]
Isma'il, 24 May 2015 @ 2:24pm

Re:
Whilst I agree with your post, your last sentence, "It's time that our representatives in congress start listening to the will of the people," is both true and tragic at the same time.

IOW Congress hasn't listened to the "will of the people" for at least a hundred years. What makes one think they'll start now?
[ link to this | view in thread ]
Teamchaos (profile), 24 May 2015 @ 5:49pm

Re:
Democrats and Republicans are vulnerable regarding The Patriot Act because Americans are tired of having their constitutional rights abused and we no longer need The Patriot Act, considering how it was originally supposed to sunset, or expire, back in 2005.

Exactly how many terrorists has the federal government captured since 2005, within the borders of the United States? Not enough to continue the act. Americans are more aware today then they were 10 years ago.

People aren't that much more aware than they were 10 years ago. People just want to be safe. We will never know how many terrorists were captured in the US - don't they still rendition terrorists?

Terrorism is still one of the top 10 problems we face according to Gallup (government was listed as the #1 problem http://www.gallup.com/poll/181946/americans-name-government-no-problem.aspx) The politicians will demagogue both sides of the issue. Nobody is going to lose an election over this.
[ link to this | view in thread ]
Jim, 24 May 2015 @ 7:00pm

Re: On top of that...
Thanks, Mike, for stealing my original comment, and replacing it with a fake profile, and putting it on top.
[ link to this | view in thread ]
Anonymous Coward, 25 May 2015 @ 7:37pm

Finally, Congress does something right by doing nothing.
[ link to this | view in thread ]
Anonymous Coward, 25 May 2015 @ 8:07pm

Re:
The constitutional question may be moot (but they might at lest make some helpful remarks in obiter), but any harm done already would surely not be moot.
[ link to this | view in thread ]
Anonymous Coward, 26 May 2015 @ 3:32am

Re: Re:
I wouldn't be surprised if something far worse hasn't already been passed in secret - Section FUD216
[ link to this | view in thread ]
Just Another Anonymous Troll, 26 May 2015 @ 5:05am

Re:
With election season coming up fast, every politician in congress is vulnerable if they vote to pass anything related to The Patriot Act and it's a sensitive issue, with many Americans and many civil rights groups opposing it.
I wouldn't be so sure, chances are the sheeple will keep voting for the same guy until they scrape his stinking corpse out of his chair.
[ link to this | view in thread ]
Anonymous Coward, 26 May 2015 @ 10:27am

us senate
what a great job to have. Fist fulls of cash shoved at you from all directions. No need to actually produce anything. No consequences for ANY actions or non actions. No progress on a critical vote? No prob, just come back next week if you feel like it. Just not sure if they have more working days or vacation days throughout the year.
[ link to this | view in thread ]
John Fenderson (profile), 26 May 2015 @ 11:44am

Re: us senate
I think it would be one of the worst possible jobs. Senators aren't just sitting around doing nothing or escaping consequences. They work obscene hours.

The problem is that most of that work is fundraising (or related activities) for their reelection campaigns, and the consequences they are most exposed to is being unable to get any of that sweet corporate money.

They also don't get an unusual amount of vacation days. this is a little confused, because when congress adjourns for a vacation, it's not really a vacation. It's the time that congresspeople return to their districts and continue to work (mostly with fundraising).
[ link to this | view in thread ]
Uriel-238 (profile), 26 May 2015 @ 12:10pm

Admissability of spying data
Yeah, we're still debating what kinds of spying data is admissible in court.

That is the whole point, for instance, of the FISC is to issue warrants (which they do in excess) on spying data that's already collected so that it may be used if necessary. That's why there are regulations about what kinds of cell-phone data (metadata but not conversations except by warrant) or emails (after 180 days or when held by a third party) are collected above board.

Parallel reconstruction is there to reduce our dependence on any data which is obtained via secret or questionable ways, either to keep detection methods obscure (security through obscurity) or to prevent a method from being challenged as contrary to Forth-Amendment protections.

I do have a public key (buried) that I've never used because no-one else does. But this a problem with implementation. I remember once wrestling with winsock software in order to get internet access, where now it's hard to get my devices to not sign on.

I think we're approaching an era in which encryption will be as transparent to the user as our current HTTPS use. The notion of this era terrifies the FBI and law enforcement worldwide since they will actually have to deal with human privacy.
[ link to this | view in thread ]