Senate and House Bills Would Effectively End NSA Mass Surveillance

Bipartisan lawmakers in both chambers of Congress are introducing mirror legislation on Tuesday that would roll back a cornerstone of the National Security Agency's domestic-surveillance authority, congressional staffers close to the negotiations say.

The bills would effectively end the spy agency's bulk collection of U.S. phone records, the first and one of the most controversial programs exposed by Edward Snowden nearly two years ago.

Intelligence agencies would instead be allowed to request call metadata—the numbers, time stamps, and duration of a call but not its content—from phone companies on an as-needed basis after obtaining judicial approval.

The bills are the result of months of bipartisan negotiations and arrive in the face of a looming June 1 sunset of three core provisions of the post-9/11 Patriot Act, including Section 215, which the NSA uses to justify its bulk collection of domestic call records.

That deadline has instilled a dire sense of urgency among pro-reform lawmakers, staffers, and privacy advocates, many of whom believe it is unlikely substantial surveillance reform can be enacted without negotiators being under the pressure of a ticking clock.

The Senate bill's lead sponsors are Patrick Leahy, the top Democrat on the Senate Judiciary Committee, and Sen. Mike Lee, a tea-party Republican from Utah. Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, is said to not be an original cosponsor of the measure, despite his office being deeply engaged in weeks of negotiations regarding NSA reform.

The introduction of a Senate bill Tuesday was largely seen as unexpected, as it appeared the chamber would not go forward with its own legislation without Grassley on board and would instead opt to wait for the House to act.

But that plan appears to have been scuttled amid continued delays over the past two weeks and Senate Majority Leader Mitch McConnell's sudden and surprising introduction last week of a fast-track bill that would grant a clean reauthorization of the Patriot Act's expiring provisions until December 2020, thus preserving the NSA dragnet.

House Judiciary Chairman Bob Goodlatte, ranking member John Conyers, and Reps. Jerrold Nadler and Jim Sensenbrenner—the original author of the Patriot Act—are all original cosponsors of the House version. A House Judiciary aide said the panel intends to vote on the bill this Thursday at 10 a.m.

"If enacted, our bill will be the most significant reform to government-surveillance authorities since the USA Patriot Act was passed nearly 14 years ago," Leahy said in a statement provided to National Journal. "Most importantly, our bill will definitively end the NSA's bulk-collection program under Section 215. The USA Freedom Act is a path forward that has the support of the administration, privacy groups, the technology industry, and—most importantly—the American people."

In addition to ending the government's bulk phone grabs, the bill would allow U.S. tech firms like Google and Facebook to disclose more information about government data requests made via the Foreign Intelligence Surveillance Court, according to a fact sheet that circulated among lawmakers last week. It would additionally give these companies more flexibility in how they can respond to national security orders.

Several national security provisions unrelated to mass surveillance have been tacked on to the bill in a bid to cajole the House and Senate intelligence committees to be more supportive of the legislation. One such provision would allow for foreign surveillance of a target who relocates to the United States to continue for up to 72 hours under limited circumstances to prevent intelligence agencies from "going dark" on surveillance as they seek approval for a domestic warrant.

Another change would increases the maximum penalty for those who offer material support to terrorism from 15 to 20 years. Many privacy groups briefed on the legislation, such as the Center for Democracy & Technology, have suggested the new additions are something they will oppose.

But some groups have also indicated they would prefer to see Section 215 of the Patriot Act expire—a position supported by GOP Sen. Rand Paul, who is running for president. Already, the American Civil Liberties Union said Tuesday it could not support the new Freedom Act because it "does not go nearly far enough."

"This bill would make only incremental improvements, and at least one provision—the material-support provision—would represent a significant step backwards," Jameel Jaffer, ACLU's deputy legal director, said in a statement. "The disclosures of the last two years make clear that we need wholesale reform. Congress should let Section 215 sunset as it's scheduled to, and then it should turn to reforming the other surveillance authorities that have been used to justify bulk collection."

Sen. Ron Wyden, a vocal civil liberties advocate, told reporters he would likely support the new bill. Wyden was a late hold out during last year's debate but ultimately voted with Democrats to support the last iteration of the Freedom Act, which failed to overcome a McConnell-led Republican opposition.

"I obviously want it to go further, closing the backdoor search loophole and the like," the Oregon Democrat said. "But I think Sen. Leahy's effort to end the collection of all of this personal information ... are very important and I'm in support of it."

Sen. Jeff Sessions, an Alabama Republican who sits on the Judiciary Committee, said he had not decided whether he could support the new measure, as he had not seen the language yet.

An earlier version of the Freedom Act overwhelmingly passed the House last year before a repurposed version of the bill fell two votes short of advancing in the lame-duck Senate.

This story has been updated.