The National Security Agency’s bulk data collection program remained on hold Monday as the Senate introduced amendments to the USA Freedom Act, which seeks to fundamentally alter the most controversial aspects of the NSA’s surveillance authorities.
Senate Majority Leader Mitch McConnell, R-Ky., urged members of the House to support three amendments to the House-passed USA Freedom Act that would provide 12 months to switch to a new system operated by the private sector, require the director of national intelligence to certify that the new system works as intended and mandates that private telecom providers notify the government at least six months in advance of changing their data retention policies.
The NSA’s surveillance authorities under the Patriot Act expired at midnight on Sunday after the Senate failed to pass the USA Freedom Act. Supporters of the amended Senate bill said they are confident it can be passed and sent to the House by the end of Tuesday.
“These fixes are common sense and, whatever one thinks of the proposed new system, there needs to be basic assurance that it will function as its proponents say that it will,” McConnell said on the Senate floor Monday. The Senate failed Sunday to pass a short-term extension of the NSA’s bulk metadata collection program, as well as less controversial provisions covering roving wiretaps to keep tabs on terrorists who change phones and a lone-wolf provision that would authorize wiretaps on suspected terrorists not associated with a group.
Sen. Bill Nelson, D-Fla., said the NSA’s ability to track terrorists has “evaporated” and the country has entered a period of darkness in which there is no law governing existing surveillance operations.
As Senate Intelligence Committee Chairman Richard Burr, R-N.C., explained, existing law enforcement or counterterrorism cases were not affected by the expiration of the Patriot Act provisions. “They’re grandfathered in, so those investigations can continue,” Burr said. “But for the 48 hours that we might be closed it means they’re going to delay the start of an investigation…and from the standpoint of the bulk data program, it means that it is frozen and it can’t be queried.”
It’s unlikely that the NSA has stopped or significantly altered any ongoing terrorist surveillance operations since the expiration of authorities on Sunday. In addition, while opinions about surveillance and privacy may have changed since the wounds of 9/11 were first opened, experts said data collection is not likely to end.
“This debate has gotten to the point where a bulk data storage capacity within the government is not going to be continued long term,” Burr said. “I think the American people want us to know if terrorists are talking to somebody in this country.”
Paul Lipman, CEO of iSheriff Inc., a Redwood City, California-based digital security company, said the temporary expiration of Section 215 of the Patriot Act, which governs the NSA’s bulk data collection, will ultimately have little impact. “Notwithstanding the fact that government agencies can continue to use Section 215 provisions for on-going investigations, it is expected that these provisions will likely shortly be reinstated,” Lipman said.
“While some telecoms, carriers and ISPs may contain government hardware enabling the government’s collection of such data, the expiration of these provisions merely requires that the government stop storing such data and not the removal of the hardware that enables such collection,” said Geoff Sanders, co-founder and CEO of LaunchKey, an identity and access management security firm based in Las Vegas. “It’s also important to note that while the government must stop storing this data on their own servers for the time being, the telecoms, carriers and ISPs will still retain such data internally, which means it’s possible that the government could retroactively obtain this data lawfully through the enactment of future legislation or unlawfully through clandestine penetration of the private companies that hold the data.”
Robert Cattanach, a partner at the international law firm Dorsey & Whitney and a former counsel to the secretary of the Navy, said the biggest change will likely be a requirement for the NSA to seek more focused warrants. “You can expect that the NSA has already prepared for this contingency and that truly critical intelligence gathering activities will not miss a beat,” Cattanach said.
However, if the House fails to act on the amended Senate bill, there could be an impact on the ability of the NSA to build a bigger picture of the terrorist threat, Cattanach said. “It is like a high definition television screen with one pixel missing. The picture the NSA sees when it runs its sophisticated search algorithms will not be even noticeably different. But every day this continues it is as though another pixel disappears. Eventually, it will be increasingly difficult to see an accurate picture of what, in fact, is happening.”