The controversial provision of the post-9/11 Patriot Act used by the government to justify the bulk collection of U.S. phone data expired without renewal or reform at 12 a.m. Monday after the Senate failed to strike a deal on Sunday evening.
Sen. Rand Paul (R-Ky.), a vocal opponent of NSA surveillance programs, called the development a "victory for liberty," and immediately sought to raise money for his presidential campaign under its banner. But the reality of what transpired on Capitol Hill Sunday is more complicated — and far less of a triumph for privacy advocates than glory-hunting politicians would have you believe.
Before calling it a night, the Senate succeeded in breaking a potential filibuster against another bill that will, in the coming 48 hours, plug most of the gaps left by the expiring Patriot Act provisions. Paul's procedural machinations put off a final vote on the USA Freedom Act for a couple days, but the surveillance "reform bill," which enjoys the backing of the White House, most of Congress and the intelligence community, is expected to pass easily as early as Tuesday morning.
What's (really) gone: There is no way to know for sure which programs the government has actually dismantled, or even simply put on hold. If we've learned anything from the Snowden disclosures and more than a decade of the "war on terror," it's that there is always a clever lawyer and an ambitious judge ready to concoct and swallow some dubious legal interpretation if it's presented as a matter of national security.
"I think there are other tools that can be used [to monitor communications], but I'm not going to elaborate on them," Sen. James Inhofe (R-Okla.) told the Daily Beast on Sunday night.
With Section 215 of the Patriot Act now expired, the NSA must, in theory, halt its practice of collecting phone and internet data. Under the Freedom Act, most of that information will be stored with telecommunication companies. If government agents believe the records hold some relevance to an ongoing investigation, they have to go through a court to compel the private companies to turn it over. Until last night, the data was vacuumed up and held by the government, allowing NSA agents to conduct simple internal searches — with no meaningful oversight — for just about anything they chose.
There is no evidence the bulk collection program ever contributed to a successful counter-terrorism investigation, according to a report by the Justice Department's inspector general. It did, however, give bored or rogue employees a powerful tool for snooping on their friends and loved ones.
What's gone (but probably not for long): The "lone wolf" provision in the Patriot Act, which allowed the government to ask for permission to track an individual with no apparent ties to a larger terrorist network, also expired Monday. Additionally, "roving wiretap" capabilities, which gave the government access to every means of communication used by its target rather than just those from a single phone number, are now technically off the table.
Rather than banning these practices, the Freedom Act writes them right back into the letter of the law. Privacy groups, like the Electronic Frontier Foundation, point to these returning provisions as reasons not to support the Freedom Act in its current form. On the question of bulk collection, the EFF and its allies were emboldened by a recent federal court decision calling the practice illegal and not justified by anything in the Patriot Act.
Time to negotiate: That court decision hangs over the negotiations and bargaining likely to take place in the Senate over the next two days. If the NSA is on one side, arguing it needs bulk collection to track potential terror operations, and privacy advocates like Paul are on the other, calling them illegal, the court ruling — which supports Paul's view — would seem to throw the NSA's argument out the window.
The reality, though, is much more complicated and considerably less logical. Both sides know the government has an assortment of lesser known, but almost equally amorphous programs at its disposal. Seeing Section 215 expire is a good first step, and advocates would like to kill more secret spy programs along with it. But that's not in the cards, so the best option is to toughen oversight and transparency rules.
The Freedom Act does a good, if not perfect, job of putting more barriers between government agents and private citizens' personal information. Part of the negotiations over the final bill will center on how much of those new court requests will be made available to the public.
So who wins? That depends on who you ask and when. Paul and his allies have declared victory, but they are mostly posing. In a political sense, Paul, along with Reps. Justin Amash (R-Mich.) and Thomas Massie (R-Ky.) are happily touting their success in bringing the issue front and center while establishment Republicans like Sen. John McCain (R.-Ariz.) and Majority Leader Mitch McConnell (R-Ky.) wanted a quiet extension.
But the Patriot Act itself is still very much alive, and the Freedom Act actually legitimizes in bold terms some of its most controversial core practices. The reforms included in the bill are only as good as the courts empowered to enforce them. The future of privacy rights in America is still very much in the balance.