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Senate at impasse as US surveillance statutes set to expire

Mark Wilson, Getty Images, AFP | The Senate side of the US Capitol building

Key US national security provisions looked likely to expire at midnight on Sunday as senators failed to agree on the contents of a surveillance reform bill that would extend its provisions past their May 31 expiration date.


With time running out, Republican Majority Leader Mitch McConnell ordered senators back to the Capitol for a rare Sunday session starting at 4pm local time (8pm GMT) to hammer out a solution.

But Republican Senator Rand Paul has vowed to block any last-minute vote to extend or reform the provisions of the National Security Agency’s controversial USA Patriot Act, including collecting telephone metadata on Americans. "Tomorrow I will force the expiration of the NSA illegal spy program," Paul said Saturday on Twitter.

In the wake of September 11, 2001, the USA Patriot Act granted the government broader surveillance and investigative powers in the name of preventing another mass-casualty terrorist attack.

It is unclear if supporters of the reform bill, known as the USA Freedom Act, will get the 60 votes it needs to pass the Senate on Sunday. A first attempt to pass the bill on May 23 fell short, 57-42, and its supporters have been pushing hard to win over three more senators.

The legislation, which would end the government's bulk collection of phone records, has already passed the House of Representatives and has US President Barack Obama’s support.

Libertarians, including Senator Paul, want the programmes ended altogether while hawks, mainly in the Republican Party, argue that it should continue in its current form without the reforms outlined in the Freedom Act.

A senior administration official said that staff would start turning off the bulk collection servers beginning at 3:59pm on Sunday – just a minute before the Senate was set to start its negotiations. Any data collection activities continuing after midnight would be deemed illegal without new congressional authorisation.

Currently, telecoms providers are legally required to provide telephone metadata on millions of Americans to the government. Metadata includes the time and length of calls, and the telephone numbers involved, but does not record the calls. The USA Freedom Act would require private firms to hold the data, which the NSA could search with court authorisation.

If the Patriot Act provisions expire the Federal Bureau of Investigation (FBI) will no longer be able to employ “roving wiretaps”. Commonly used in drugs and espionage cases, such wiretaps allow the FBI to target a suspect rather than a device, allowing them to monitor a suspect who uses disposable “burner” phones to escape surveillance. Without it the FBI will need to get a separate order for each device it wants to monitor.

'Reckless' approach

"These tools are not controversial," Obama, who supports the Freedom Act reform bill, said Saturday in a radio address.

"Unfortunately, some folks are trying to use this debate to score political points," he said.

"Terrorists like al Qaeda and ISIL (the Islamic State group) aren't suddenly going to stop plotting against us at midnight tomorrow," Obama added.

Top security officials have also voiced their concerns.

“The intelligence community will lose important capabilities,” Director of National Intelligence James Clapper said in a statement. “At this late date, prompt passage of the USA Freedom Act by the Senate is the best way to minimise any possible disruption of our ability to protect the American people.”

If Senator Paul blocks votes, lawmakers will not be able to approve either the Freedom Act reform bill or a Patriot Act extension until later in the week.

"Senator McConnell's favourite tactic is to manufacture unnecessary crises and hope something gets worked out at the last minute," said Adam Jentleson, a senior aide to Senate Minority Leader Harry Reid.

"We are watching Senator McConnell's reckless, half-baked approach backfire badly before our eyes, with potentially devastating consequences for the American people."

But some experts and civil liberties advocates say that the US intelligence community and law enforcement already have other powerful and less controversial tools to investigate and prosecute suspects, including other forms of electronic surveillance.

Widespread calls for the reform of surveillance practices followed disclosures by former NSA contractor Edward Snowden.

Snowden, who has since sought asylum in Russia, leaked classified information on the US government's widespread data mining and spying programmes – including monitoring foreign leaders – in one of the biggest security breaches in US history.

Barring a last-minute deal in Congress, the following provisions are set to expire at midnight:

  • Section 215 of the Patriot Act, which has been used to authorise the NSA’s bulk collection of domestic telephone records. An appeals court recently ruled that the law did not support that programme, but the ruling was put on hold pending the debate in Congress. Section 215 is also used by the FBI about 200 times a year to obtain business records – including hotel bills, travel vouchers and Internet data – relevant to a terrorism investigation. If the programme lapses, the FBI will have to go back to a system that was in place before the September 11, 2001 attacks that was much more restrictive.
  • Section 206 authorises "roving wiretaps" in national security cases. Commonly used in drug cases, such wiretaps allow the FBI to monitor a suspect who uses disposable “burner” phones to escape surveillance. Officials say roving wiretaps are more often used in spy investigations than in terrorism probes. If the provision expires the FBI would need to get a separate order for each device it wants to monitor.
  • Section 6001 of the 2004 Intelligence Reform and Terrorism Prevention Act is known as the "lone wolf" provision but has never been used. It is designed to allow the FBI to eavesdrop on a foreign national who is not affiliated with any foreign government nor suspected of belonging to a terrorist group.


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