Failure to pass US surveillance reform bill could still curtail NSA powers

If the Senate doesn’t pass the USA Freedom Act after the midterm elections, a key section of the Patriot Act could expire

Two members of the US House of Representatives are warning that a failure to pass landmark surveillance reform will result in a far more drastic curtailment of US surveillance powers — one that will occur simply by the House doing nothing at all.

As the clock ticks down on the 113th Congress, time is running out for the USA Freedom Act, the first legislative attempt at reining in the National Security Agency during the 9/11 era. Unless the Senate passes the stalled bill in the brief session following November’s midterm elections, the NSA will keep all of its existing powers to collect US phone records in bulk, despite support for the bill from the White House, the House of Representatives and, formally, the NSA itself.

But supporters of the Freedom Act are warning that the intelligence agencies and their congressional allies will find the reform bill’s legislative death to be a cold comfort.

On 1 June 2015, Section 215 of the Patriot Act will expire. The loss of Section 215 will deprive the NSA of the legal pretext for its bulk domestic phone records dragnet. But it will cut deeper than that: the Federal Bureau of Investigation will lose its controversial post-9/11 powers to obtain vast amounts of business records relevant to terrorism or espionage investigations. Those are investigative authorities the USA Freedom Act leaves largely untouched.

Section 215’s expiration will occur through simple legislative inertia, a characteristic of the House of Representatives in recent years.

Already, the House has voted to sharply curtail domestic dragnet surveillance, both by passing the Freedom Act in May and voting the following month to ban the NSA from warrantlessly searching through its troves of international communications for Americans’ identifying information. Legislators are warning that the next Congress, expected to be more Republican and more hostile to domestic spying, is unlikely to reauthorise Section 215.

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