The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative action.
A set of key Patriot Act surveillance authorities expire June 1, but the effective date is May 21 — the last day before Congress breaks for a Memorial Day recess.
In a letter to be sent Wednesday to the Obama administration and senior lawmakers, the coalition vowed to oppose any legislation that, among other things, does not ban the “bulk collection” of Americans’ phone records and other data.
“The status quo is untenable and . . . it is urgent that Congress move forward with reform,” said the letter, whose signatories include the Reform Government Surveillance industry coalition. Members of the group include Apple, Google, Microsoft, Twitter and Facebook.
“We know that there are some in Congress who think that they can get away with reauthorizing the expiring provisions of the Patriot Act without any reforms at all,” said Kevin Bankston, policy director of New America Foundation’s Open Technology Institute, a privacy group that organized the effort. “This letter draws a line in the sand that makes clear that the privacy community and the Internet industry do not intend to let that happen without a fight.”
At issue is the bulk collection of Americans’ data by intelligence agencies such as the National Security Agency. The NSA’s daily gathering of millions of records logging phone call times, lengths and other “metadata” stirred controversy when it was revealed in June 2013 by former NSA contractor Edward Snowden.
The records are placed in a database that can, with a judge’s permission, be searched for links to foreign terrorists.They do not include the content of conversations.
That program, placed under federal surveillance court oversight in 2006, was authorized by the court in secret under Section 215 of the Patriot Act — one of the expiring provisions.
The public outcry that ensued after the program was disclosed forced President Obama in January 2014 to call for an end to the NSA’s storage of the data. He also appealed to Congress to find a way to preserve the agency’s access to the data for counterterrorism information.
But in recent months, the political opposition to limiting surveillance has gained strength in part because of growing concerns over the threat of terrorism. Those concerns were exacerbated by the rise of the Islamic State and the attacks that left 17 people dead in and around Paris in January.
“NSA programs, including the bulk telephone metadata program, are crucial anti-terror and foreign intelligence tools that should be reauthorized,” said Rep. Devin Nunes (R-Calif.), chairman of the House Intelligence Committee.
He told reporters on Tuesday that he felt the program has been misunderstood and that he would hold classified briefings for the GOP caucus.
“Given the events in the last six months, from beheadings to the immolation of a Jordanian soldier, the national security crowd has the wind at its back,” said Michael Allen, a former House Intelligence Committee staff director and now managing director of Beacon Global Strategies.
Despite growing opposition in some quarters to ending the NSA’s program, a “clean” authorization — one that would enable its continuation without any changes — is unlikely, lawmakers from both parties say.
Sen. Ron Wyden (D-Ore.), a leading opponent of the NSA’s program in its current format, said he would be “surprised if there are 60 votes” in the Senate for that.
In the House, where there is bipartisan support for reining in surveillance, it’s a longer shot still. “It’s a toxic vote back in your district to reauthorize the Patriot Act, if you don’t get some reforms” with it, said Rep. Thomas Massie (R-Ky.).
The House last fall passed the USA Freedom Act, which would have ended the NSA program, but the Senate failed to advance its own version.The House and Senate judiciary committees are working to come up with new bipartisan legislation to be introduced soon.
The tech firms and privacy groups’ demands are a baseline, they say. Besides ending bulk collection, they want companies to have the right to be more transparent in reporting on national security requests and greater declassification of opinions by the Foreign Intelligence Surveillance Court.
Some legal experts have pointed to a little-noticed clause in the Patriot Act that would appear to allow bulk collection to continue even if the authority is not renewed. Administration officials have conceded privately that a legal case probably could be made for that, but politically it would be a tough sell.
On Tuesday, a White House spokesman indicated the administration would not seek to exploit that clause. “If Section 215 sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Edward Price said in a statement first reported by Reuters.
Price added that allowing Section 215 to expire would result in the loss of a “critical national security tool” used in investigations that do not involve the bulk collection of data. “That is why we have underscored the imperative of Congressional action in the coming weeks, and we welcome the opportunity to work with lawmakers on such legislation,” he said.