Tensions seemed to rise in the capitol as civil libertarians rallied around Sen. Rand Paul for his successful efforts to block renewal of the Patriot Act while fellow GOP Sen. John McCain denounced him for political grandstanding. Meanwhile, members of both parties warned that it was the terrorists, not the American public, who were the big victors.
Amidst all the clamor, here is what you need to know.
What happened?
Although the Senate voted Sunday to go forward with the USA Freedom Act, Sen. Rand Paul, R-Ky., followed through on a pledge to force Patriot Act provisions to expire — and that happened.
“These are interesting times,” said Donna Schlagheck, recently retired chair of Wright State University’s Political Science Department.
Which Patriot Act provisions expired?
Principally the most controversial part of the law, known as Section 215. The National Security Agency relied on that to access telephone records of millions of Americans not charged with or suspected of any crime. The data shows who called, who received calls, how long calls lasted and when calls were made.
The so-called “lone wolf” provision of the act also expired. That allowed intelligence and law enforcement to target for surveillance any suspected terrorists acting without direct ties to terrorist organizations or certain “rogue” nations.
The “roving wiretap” provision expired, too. That lets the federal government’s wiretapping prowess follow an individual person rather than a specific phone or electronic device. The idea is to follow suspected terrorists who may acquire and discard many cell phones.
What didn’t happen?
National intelligence work against would-be terrorists has not ceased.
“We didn’t turn the Internet off,” said Tim Shaw, senior vice president and director of operations at the Advanced Technical Intelligence Center in Beavercreek. “(The U.S. is) still collecting data.”
What is the Patriot Act?
The Patriot Act was passed by Congress and signed into law by then-President George W. Bush in October 2001, shortly after the terrorist attacks of Sept. 11, 2001. It was meant to give the federal government tools to detect and obstruct terrorist attacks before they happen.
It has seen provisions amended and extended by Congressional votes since then. The act touches dozens of sections of federal law.
Does this affect me immediately?
“Immediately no,” said Schlagheck, whose 1988 book, “International Terrorism,” was the first text on terrorism meant for college students. “Any (terrorist) networks that are out there that have been identified by the big sweep-up of phone calls, the metadata, will already be under observation.”
“It’s not going to affect (most American citizens), and we’re not going to notice anything,” Shaw said.
National security professionals will have a few days to seek whatever subpoenas for surveillance or phone records they still think they need, Schlagheck said.
“I don’t think there is any immediate, urgent threat to the (national security) mission,” she said.
However, Shaw is concerned that U.S. adversaries may attempt to take advantage of whatever gap the expiration represents.
“That would be the only thing I would worry about, and I’m not worried in great detail about that,” Shaw said.
Schlagheck thinks the Freedom Act — the proposed replacement for the newly expired functions — is adequate to the national security task. These telecommunication records won’t simply vanish, after all. Private phone companies retain the data for what are said to be billing purposes for 18 months to five years.
“Best to let it sit in private hands and go to to a judge and make specific requests,” she said. “It’s a small curb, but it’s an important curb.”
What is the USA Freedom Act?
It’s meant to be a compromise reconciling privacy and national security concerns. The House passed the bill 338-88 May 14. Among other provisions, the act lets phone companies collect call data.
“I think it’s that balancing between privacy on a national scale and national security,” Schlagheck said.
Why is this controversial?
Today’s political environment is different than the one immediately after Sept. 11, 2001.
The original Patriot Act sailed through with nearly no opposition, passing the Senate 98-1 and the House 357-66.
But as popular as the legislation was, Schlagheck doubts it was well understood. She doubts most senators even read the act’s executive summary.
In 2013, former NSA contractor Edward Snowden released classified documents revealing the program to track data on Americans’ phone calls and e-mails. Snowden since has fled to political and legal exile in Russia.
“Most people would not have noticed the collection of metadata if it had not been linked by Snowden,” Shaw said.
Then, in early May, a federal appeals court ruled in a 97-page decision that the bulk phone data collection program is illegal.
Members of both parties have misgivings about the law. In May, the House voted 338 to 88 to change the Patriot Act to block NSA bulk phone data collection.
What happens now?
Not all investigations of phone records under Section 215 of the Patriot Act have ceased. Part of the act also allows the NSA to “grandfather in” and continue probes begun before Monday’s expiration.
Section 215 data (or “bulk metadata” as it’s sometimes called) does not disappear. Companies such as AT&T and Verizon continue to retain the data for up to five years.
“If the NSA is not collecting the data, it doesn’t mean the phone companies are not hanging on to the data,” Shaw said.
The Senate, meanwhile, is expected to continue debate the matter in coming days.
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