NSA Reform Could Pit GOP Hawks Against Party’s Libertarian Wing

Efforts to curb the National Security Agency’s bulk collection of American phone metadata were dealt a blow with the defeat of the USA Freedom Act on Nov. 18. With a 58-42 vote, the bill failed to attract the 60 votes necessary to clear the Senate filibuster.

With Republicans taking control of Congress in January, privacy advocates are concerned that the vote represented the last chance to enact surveillance reform. Experts say it’s too close to call whether the new, GOP-controlled Congress will maintain the status quo or look to pass legislation that accomplishes some of the Freedom Act’s objectives.

“There’s enough uneasiness and opposition to the NSA” that the GOP is split over what to do next, said Robert Jervis, a professor of political science and international affairs at Columbia University. Still, “there’s a broad political coalition that’s in favor of surveillance,” said Abraham Newman, an associate professor at the School of Foreign Service at Georgetown University.

Normally hawkish Sen. Ted Cruz, R-Texas, voted for the bill.

Incoming Senate majority leader Mitch McConnell, R-Ky., referring to the terrorist group ISIS, said now is “the worst time to tie our hands behind our backs” and voted against it.

Incoming Senate judiciary chairman Chuck Grassley, R-Iowa, voted against the bill. Rand Paul, R-Ky., a front-runner for the GOP 2016 presidential nomination, voted against it because of a provision to extend Section 215 of the Patriot Act, which provides the legal foundation for the data collection. It will expire on June 1 next year if not renewed.

“The very likely outcome is that it will be renewed,” Newman said, adding that a provision could be attached to another bill in the weeks before the June 1 deadline. “Many provisions of the Patriot Act have sunset clauses, but, if you look, very few of them have ever actually sunset. It could be reauthorized through some omnibus legislation.”

The USA Freedom Act proposed an end to the indiscriminate collection of American phone metadata and would have installed a privacy watchdog within Foreign Intelligence Surveillance Court deliberations.

The USA Freedom Act would have also forced the NSA to reveal how many Americans are inadvertently ensnared in the investigation of foreign suspects and given technology companies the ability to be more transparent on the number of data requests they are forced to comply with.

If passed, the act would have ensured that the NSA still had access to phone metadata while keeping those records in the hands of phone companies. That raised eyebrows from the civil liberties community, with critics pointing to the recent news of Verizon’s nearly undetectable tracking cookie as proof that the corporate world is hardly a better privacy safeguard than the NSA.

Newman said the USA Freedom Act was “tepid,” yet it still proved unable to pass through the Senate.

In a more cynical sense, the USA Freedom Act’s demise may have satisfied leadership of both parties. The Obama administration can accurately say to the left that it supported surveillance reform while avoiding the political backlash that would come with stripping intelligence agencies of their power during a time of international conflict. Influential Republicans considering a White House run can make the same claim.

Trevor Timm, executive director of the Freedom of the Press Foundation, suggested in a column for the Guardian that courts might be more likely to make changes to the NSA’s practices than Congress. A number of cases, regarding National Security Letters and a Supreme Court decision on cell phone searches, could set a precedent before Congress resumes the debate again.