At 3:59pm in Washington today, the US National Security Agency (NSA) and telecommunications companies are to begin mothballing a once-secret system that collected bulk telephone records of US citizens, shutting down computers and sealing off warehouses of digital data.
If the US Congress fails to act, key provisions of the USA PATRIOT Act are to lapse in a watershed moment in the post-Sept. 11, 2001, era. Intrusive federal government powers, created and wielded in the name of preventing another mass-casualty terrorist attack, would be at least partly scaled back, proponents and critics of the surveillance say.
The FBI, for instance, would no longer be able to employ “roving wiretaps” aimed at terrorism suspects who use multiple disposable cellphones, and is expected to have more difficulty seizing the personal and business records of such suspects and their associates.
“We are past the immediate aftermath of the 9/11 attack. And we can look at these issues more calmly,” said Peter Swire, who served on a review panel appointed by US President Barack Obama after former NSA contractor Edward Snowden’s 2013 revelations of vast NSA surveillance.
With the clock ticking, a coalition of US Senate Republican libertarians and security hawks has blocked action on new legislation known as the USA FREEDOM Act that would reform the bulk telephone data program, but not kill it.
Libertarians want the program ended altogether, while the hawks argue that it should be maintained as it is now.
Currently, telecoms are legally required to send telephone records to the government. The USA FREEDOM Act would require private firms to hold the data, which the NSA could search with court authorization.
The US Senate is scheduled to hold a special session to consider the legislation at 4pm today — just as security officials say they have to begin shutting the NSA program down to meet a midnight deadline. The USA FREEDOM Act already has passed the US House of Representatives and has Obama’s strong support.
It is unclear whether supporters of the FREEDOM Act can get the 60 votes needed in the Senate to move forward. A previous attempt on May 23 fell short, 57-42, but the bill’s backers have been pushing hard to win over three more senators.
How badly US counterterrorism efforts would be disrupted by even a temporary suspension of the telephone data collection and other legal authorities is disputed.
The Obama administration is issuing increasingly dire warnings, sometimes citing the Islamic State group’s calls on its supporters to conduct attacks wherever they live.
“The intelligence community will lose important capabilities,” Director of US National Intelligence James Clapper said in a statement. “At this late date, prompt passage of the USA FREEDOM Act by the Senate is the best way to minimize any possible disruption of our ability to protect the American people.”
However, many experts and civil liberties advocates say that US intelligence and law enforcement authorities have other powerful — and less objectionable — tools to investigate and prosecute militant plots. Those include court orders, subpoenas and other forms of electronic surveillance.
“The government still has expansive ... law enforcement tools that will remain in place,” American Civil Liberties Union (ACLU) executive director Anthony Romero said.
Groups as diverse as the left-leaning ACLU and the conservative Tea Party Patriots say that the telephone data program in particular is unconstitutionally broad, targeting the communications of millions of innocent Americans.
Earlier this month, a US federal appeals court ruled the program illegal, going beyond what the PATRIOT Act authorized. The court declined to halt the program, saying it would give Congress a chance to act.
The bulk telephone records program, first exposed to journalists by Snowden, collects metadata — data that provide information about other data — about US citizens’ telephone calls. The data include the number dialed and time and length of the call, but not the content of the conversation.
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