Senate's flip could ease path to NSA reform

The looming Republican takeover of the Senate could boost the efforts of civil libertarians and tech companies hoping to rein the National Security Agency this year.
 
Sen. Patrick LeahyPatrick Joseph LeahyPhotos of the Week: Renewable energy, gymnast testimonies and a Met Gala dress Senators denounce protest staged outside home of Justice Kavanaugh Al Franken on another Senate run: 'I'm keeping my options open' MORE’s (D-Vt.) USA Freedom Act has long faced an uphill battle in the Senate, yet Republicans have some incentive to deal with the issue in the upcoming lame-duck session, rather than risk exposing a rift within the party after the GOP takes control.

“I think that the election results highlight the need and, from the Republican Party’s perspective, the desirability of getting USA Freedom across the finish line in the lame duck in order to avoid a potentially ugly inter-party dispute over NSA and surveillance reform next year,” said Kevin Bankston, the policy director at the New America Foundation’s Open Technology Institute.

ADVERTISEMENT

The USA Freedom Act seeks to end the NSA’s bulk collection of Americans’ phone records, the most controversial program revealed by Edward Snowden last summer. The bill would require that agents obtain an order from the secretive Foreign Intelligence Surveillance Court before searching through the records held by private phone companies.
 
It would also make structural changes to the court and give companies additional ways to report how much information they hand over to the government, a top priority for the tech sector.
 
The bill has an uncertain path forward. It has been held up for several months over negotiations on measures such as the creation of a new panel of civil liberties advocates on the court, and there are few signs of legislators bridging that divide.
 
Lawmakers have to act at some point soon, however.
 
Without reauthorization, the NSA’s phone records program will expire in June, a scenario that intelligence agency officials have said would devastate their ability to track terrorists. The biggest critics of the spy agency have promised to oppose a blanket reauthorization of the law.
 
Not acting now could set the stage for a major showdown on U.S. spying next spring.
 
While potential 2016 presidential candidates Sens. Rand PaulRandal (Rand) Howard PaulGOP political operatives indicted over illegal campaign contribution from Russian national in 2016 White House debates vaccines for air travel Senate lawmakers let frustration show with Blinken MORE (R-Ky.) and Ted CruzRafael (Ted) Edward CruzMatthew McConaughey on potential political run: 'I'm measuring it' Professor tells Cruz that Texas's voter ID law is racist Schumer moves to break GOP blockade on Biden's State picks MORE (R-Texas) — who is a cosponsor of the USA Freedom Act — might relish the opportunity to advertise their civil liberties bona fides on the Senate floor just months before the campaign season gets formally under way, it’s easy to see how Republican leaders would want to avoid showing a split within the party.
 
The fight could also eat up valuable floor space early in Republicans’ time controlling both chambers of Congress.

“It might be in the party’s interest not to divide themselves early on into next Congress and get this out of the way, so they can turn to some of their other priority agenda items,” said one lobbyist working to pass the bill.
 
A second lobbyist working on the issue said passing the bill this year “would make it a lot easier to start with a clean slate” in 2015.
 
Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellHouse passes standalone bill to provide B for Israel's Iron Dome Pelosi vows to avert government shutdown McConnell calls Trump a 'fading brand' in Woodward-Costa book MORE (R-Ky.) said on Wednesday that there are multiple issues he would like to take care of this year, though he did not specifically mention the USA Freedom Act.
 
“The Senate hasn’t been doing anything,” he added. “So, there’s a whole lot of unfinished business sitting there, some of which it might be advantageous to get out of the way — Democrats may want to do it, and we may want to do it — in order to clear off some of the necessary work that’s just simply been undone in the dysfunctional Senate.”
 
Leahy, for one, has made the USA Freedom Act his main priority for the rest of the year, and he seems unlikely to yield in his final few weeks as chairman of the Senate Judiciary Committee.

Whatever happens with the USA Freedom Act, however, Republican control of the Senate is likely to scuttle any more aggressive surveillance reforms in the immediate future.
 
Sen. Mark UdallMark Emery UdallKennedy apologizes for calling Haaland a 'whack job' OVERNIGHT ENERGY: Haaland courts moderates during tense confirmation hearing | GOP's Westerman looks to take on Democrats on climate change | White House urges passage of House public lands package Udalls: Haaland criticism motivated 'by something other than her record' MORE (D-Colo.), one of the strongest advocates of tougher reforms to the NSA, lost his reelection race to Rep. Cory GardnerCory GardnerProtecting the outdoors: Three cheers for America's best idea Ex-Sen. Cory Gardner joins lobbying firm Biden administration reverses Trump changes it says 'undermined' conservation program MORE (R-Colo.) on Tuesday night, depriving spy critics of a core voice on the Senate Intelligence Committee. While Gardner has praised Udall’s work on the issue, he has been a much less passionate critic.
 
Rep. Tom CottonTom Bryant CottonHillicon Valley — Presented by Xerox — Tech groups take aim at Texas Republican lawmakers raise security, privacy concerns over Huawei cloud services Debt ceiling fight pits corporate America against Republicans MORE (R-Ark.), who easily unseated Sen. Mark PryorMark Lunsford PryorBottom line Everybody wants Joe Manchin Cotton glides to reelection in Arkansas MORE (R-Ark.) on Tuesday, has been a defender of the NSA in the past and is expected to join the ranks of hawks in the chamber.
 
The new makeup of the Intelligence Committee will also change next year, in a shift that many civil libertarians said wouldn’t be good for their issues.
 
The panel’s current top Republican, Sen. Saxby ChamblissClarence (Saxby) Saxby ChamblissEffective and profitable climate solutions are within the nation's farms and forests Live coverage: Georgia Senate runoffs Trump, Biden face new head-to-head contest in Georgia MORE (Ga.), is retiring this year, opening the door for Sen. Richard BurrRichard Mauze BurrThe Hill's Morning Report - Presented by Alibaba - Biden jumps into frenzied Dem spending talks GOP senators say Biden COVID-19 strategy has 'exacerbated vaccine hesitancy' Senate advances Biden consumer bureau pick after panel logjam MORE (R-N.C.) to assume the mantle as chairman of the powerful spy panel.
 
He has widely been seen to me a more supportive ally of the NSA, CIA and other spy agencies.
 
Burr has “zero intention of exercising any oversight into the intelligence community,” warned Marcy Wheeler, a prominent liberal critic of American spying, in a blog post on Wednesday.