USA Freedom Act: The Senate’s only chance to reform NSA surveillance

It is high time for the Senate to act on surveillance reform by passing the bipartisan, bicameral USA FREEDOM Act, which the House approved overwhelmingly last week. The Senate has only a few working days before the June 1 sunset of Section 215 of the Patriot Act. Opponents of reform are pushing a two-month extension of Section 215, claiming that more time is needed to consider the issue.

Such claims are disingenuous. It has been nearly two years since Edward Snowden leaked government documents detailing the NSA’s spying on everyday law-abiding Americans, setting off a nationwide debate over the appropriate scope of the NSA’s domestic spying. It is now well known that for years the NSA has been amassing a giant database of call detail records for all calls made in the United States. These records, which contain the number dialed and duration of the call, can reveal intimate personal details about our lives and relationships.

The NSA has claimed the authority to collect these records based on an expansive interpretation of the expiring Section 215 business records provision of the Patriot Act. The United States Court of Appeals for the Second Circuit recently rejected this expansive interpretation and held that the current bulk collection program is not authorized by the statute and is therefore unlawful. Moreover, the collection program as currently conducted is widely viewed as unnecessary for keeping us safe. In fact, the government’s own studies have found that bulk collection of our phone records plays, at best, a minor role in preventing terrorist attacks. Even the Intelligence Community itself asserts that a more targeted, less-intrusive approach would preserve all the capabilities it needs.

And the American public isn’t buying the need for “clean” reauthorization either.  A new poll shows broad opposition to government surveillance that cuts across partisan, ideological, age and gender divides.  Sixty percent of likely voters say the Patriot Act ought to be modified, against 34 percent that favor extending it in its current form, with 58 percent support for modification among Republicans, 59 percent support among Democrats, and a whopping 71 percent support among independents.  Even voters who call themselves “very conservative” favor modification by a 59 percent to 34 percent margin.

The obvious solution is to amend the law so that it prohibits the marginally useful and overly intrusive bulk collection program and in its place provide the intelligence community with properly tailored and needed authorities. The USA FREEDOM Act would do just that by replacing the current unauthorized bulk collection program with a new tailored authority to obtain call records associated with a “specific selection term,” and only after obtaining an order from the Foreign Intelligence Surveillance Court. The bill would also increase transparency by making significant FISC opinions and the number of surveillance requests more available to the public. This bipartisan path forward not only passed the House overwhelmingly, but has been embraced by the Director of National Intelligence, the Department of Justice, the White House, civil liberties and privacy advocates, and technology and communications companies.

The Senate should pass this sensible compromise. The alternatives are to let Section 215 authorities expire or pass a short-term extension. The former would deprive the government of an evidence-gathering tool that is considered essential by many intelligence and law enforcement personnel (Section 215 serves many investigative purposes other than bulk phone record collection) without actually prohibiting bulk collection. The aim of a short term extension is not to allow more time to consider the issue—the Senate has had nearly two years to do so. Rather, the purpose is to allow time to weaken the USA FREEDOM Act. But the current bill represents a fragile balance of wide-ranging and competing interests and any changes are likely to result in current supporters from all sides withdrawing that support. Causing this compromise to unravel puts both our national security and our privacy at risk. The government would not get the tailored collection authority it seeks, and Americans would not get the privacy and transparency protections they want and deserve.

It is not more time but more leadership that is needed.  Our security and our privacy depend on it.

McCarthy is a former CIA official and former senior director for Intelligence Programs at the National Security Council. She is a member of The Constitution Project Liberty and Security Committee.