The USA Freedom Act was blocked in the Senate on November 18 when the sponsors could not obtain cloture, the 60 votes needed to shut down debate and obtain a vote on the bill. The bill addressed the limits of government data collection and Foreign Intelligence Surveillance Court (“FISC”) proceedings. The bill had enjoyed substantial support from the technology sector out of a concern that foreign customers are reluctant to trust U.S. internet and communications companies if the U.S. government will have easy access to their data.
The Senate version of the bill, introduced in July by Sen. Patrick Leahy (D-VT) and co-sponsored by Sen. Mike Lee (R-UT), had been crafted to strike a more bipartisan balance than the House version of the bill approved in May. Though the House bill had originally been heralded as a radical reformation of current government surveillance and data collection practices, many thought that the final version of the House bill had undergone too many significant changes and become too watered down to marshal the necessary Democratic support in the Senate to pass.
The Senate bill attempted to reintroduce reformist elements in the bill without alienating intelligence hawks. Among other things, the Senate bill would have required court orders for warrantless data collection and required any collection of phone records to use a narrow “selector,” effectively a search term that identified a specific person, phone line, or entity to be searched. The bill would also have created the new position of public advocate who could advance arguments in opposition to the government on behalf of the public in proceedings before the FISC. Currently, when the government seeks approval before the FISC for its surveillance activities, there is no representative of the public to counterbalance the intelligence community’s positions.
The bill was just two votes shy of cloture, even though Republicans such as Ted Cruz (R-TX) and Mike Lee were backing the bill. Other key Republicans like Sen. Rand Paul (KY), Sen. Saxby Chambliss (GA), and soon-to-be Senate Majority Leader Mitch McConnell (KY) opposed the bill, though for different reasons. Paul thought the bill did not go far enough in reforming current surveillance practices of the NSA, while Chambliss and McConnell thought it went too far and hindered the intelligence community from doing its work.
Though the bill is likely finished for 2014, the issue will necessarily come back to the forefront in early 2015. Key provisions of the Patriot Act are set to expire next summer, giving reformists from both sides of the aisle leverage to negotiate with any opponents of a rebooted USA Freedom Act in 2015.
For a copy of the Senate bill, S. 1599, 113th Congress (2012-2014), please click here.