Fight in Congress to Preserve NSA’s Metadata Program Comes to Naught

May 23, 2015 Updated: May 24, 2015

With the failure of the Senate after several attempts to reauthorize the Patriot Act, it is set to expire on June 1. With its expiration, authorization for the National Security Agency’s controversial telephone metadata collection program will also end.

The Senate leadership tried repeatedly to push through the Patriot Act. When a full extension failed to procure the needed votes, proponents of the bill proposed a two-month stopgap.

That failed too, as did proposals for a one-week, and even a one-day extension, with the Senate ending its week on May 23, several hours past midnight. 

Critics hailed the result as ending legislative attempts to keep alive a program characterized as the cornerstone of intrusive surveillance, even spying, on U.S. citizens. 

Sen. Rand Paul of Kentucky, a noted opponent of metadata program, led the charge against the renewal of the Patriot Act. Having previously held a 10.5-hour filibuster in which he lashed out against the NSA’s surveillance on May 20, Paul led the charge to reject the one-day extension of the Patriot Act. 

Metadata and Politics 

Paul, a dark-horse candidate in the 2016 Republican presidential primary, has been chided in some circles for taking advantage of the maelstrom over NSA surveillance to bolster his electoral position in 2016, and many felt his “filibuster” was mere staged drama. 

The metadata program is authorized in Section 215 of the Patriot Act.

Senate Majority Leader Mitch McConnell’s last-ditch efforts to save the program constituted a rejection of a May 7 ruling by Second Circuit Court of Appeals, which had ruled the program illegal.

That decision is an outlier—Section 215 had been upheld in 36 of 39 previous decisions by 19 different judges. And the decision’s reasoning has been sharply criticized by proponents of the metadata program. Nonetheless, how McConnell would have prevailed politically is unclear.

If McConnell’s efforts had borne fruit, the court would likely have issued an injunction to end the program. In the decision, the court noted that rather than issue an injunction, it preferred to give Congress a chance to modify the text of Section 215 in a way that could pass judicial scrutiny. 

In the opinion, the court ruled that the existing data collection program gathered more information than was permissible under a standard that allowed for the collection of “relevant” evidence to a criminal investigation. 

For the program to be saved, Congress would have to pass a bill modifying the text of the Patriot Act to expand the NSA’s powers, and the president would have to sign it. 

Such a scenario is a political impossibility: the House voted for the USA Freedom Act, which would end the metadata program, by a landslide margin last week, and President Obama has urged the Senate to pass the bill. With 60 percent of Americans in favor of watering down the Patriot Act, the metadata program is all but dead at this point. 

McConnell has used his procedural powers as majority leader to block a vote on the USA Freedom Act, which would grant a six-month transition period for the NSA metadata program so that existing investigations aren’t disrupted. 

While the USA Freedom Act does curtail the blanket collection of telephone metadata on U.S. citizens, the mass collection of data on international communications, encryption-breaking, and other activities would continue. Private companies would no longer be required to keep records of telephone data, but the NSA could always request any metadata held by the private companies if it got a court order, which it usually does. 

The current version of the USA Freedom Act has also been modified from the original 2013 bill, granting the NSA broad authority to spy on people tangentially related to a subject under investigation. For this and other reasons, the Electronic Freedom Frontier, a major digital rights watchdog, withdrew its support for the bill earlier this month.