“If we take anything from the Paris attacks, it should be that vigilance and safety go hand-in-hand,” Cotton said in a statement last week, when he announced a bill to renew bulk data collection. “We should allow the intelligence community to do their job and provide them with the tools they need to keep us safe.”
Cotton has corralled some influential supporters for reviving the collection: Senate Intelligence Committee Chairman Richard Burr (R-N.C.), Senate Armed Services Committee Chairman John McCain (R-Ariz.) and perhaps most importantly, Senate Majority Leader Mitch McConnell (R-Ky.), all of whom have all signed on as co-sponsors of the legislation.
Presidential candidate Sen. Marco Rubio (R-Fla.) has signed on as well, while the Senate’s three other 2016 candidates for the GOP nomination — Ted Cruz (R-Texas), Rand Paul (R-Ky.) and Lindsey Graham (R-S.C.) — have not.
But with time running out, it’s unclear whether Cotton’s bill will amount to anything more than a gesture of protest against the much-debated data collection program. The legislation faces some practical limitations: The Senate won’t come back into session before the program is set to expire and as of now, there are no plans to put Cotton’s bill on the floor.
After revelations by Edward Snowden prompted a major backlash and a challenge from the American Civil Liberties Union, a New York federal appeals court gave the government through Nov. 28 to phase out the program under which the NSA has collected and stored the metadata on billions of phone calls of Americans, claiming the authority to do so under the USA Patriot Act. Congress voted to end that kind of data collection when it passed the USA Freedom Act in June.
Cotton’s legislation, according to a copy obtained by the Washington Post, would extend the authority to collect and store phone call metadata until Jan. 31, 2017 – or 11 days after the next president is inaugurated – or until such time as the current president can prove to Congress’ intelligence committee chiefs that the new surveillance programs will have “no operational impacts” on intelligence gathering.
Starting next week, the NSA will only be able to gather metadata on a case-by-case basis after establishing reasonable suspicion a specific phone number is linked to a foreign terrorist. Phone companies are charged with storing the metadata, but Cotton’s office worries that will hamstring terrorist tracking because the data might be in different formats.There is also a concern that phone companies won’t be store the data for the five years required under the bulk collection program.
And not everyone, even in the same party, wants to see the program renewed.
There are some powerful Republicans that have decried efforts like Cotton’s. Rep. Jim Sensenbrenner (R-Wisc.), one of the chief congressional architects of the Patriot Act, said in a statement last week that “any claim that USA FREEDOM hindered the NSA is fear-mongering, plain and simple.”
Sensenbrenner argues that the bulk data collection, which the government argued was legal under section 215 of the Patriot Act, actually exceeded the authority given to the NSA under that provision.
“This attack happened despite the government’s bulk collection of innocent Americans’ phone data,” Sensenbrenner argued last week. “Once again, bulk collection is not the answer.”
The USA Freedom Act extends Section 215 through 2019, but with the express prohibition on the NSA continuing its bulk data collection program, replacing that with the phone company-based, targeted data collection program described above.
In addition to amending the prohibited data collection authority, Cotton’s bill would make permanent two other provisions of the Patriot Act that would otherwise sunset in 2019: The provisions authorizing roving wiretaps and “lone wolf” surveillance authority.