A controversial program allowing the U.S. National Security Agency to collect millions of domestic telephone records expired Sunday night after the Senate failed to vote on a bill to extend the authority for the surveillance.
The Senate, meeting on Sunday as provisions of the counterterrorism Patriot Act were hours from expiring, voted on a so-called cloture to limit debate and move toward a vote on the USA Freedom Act, a bill that would rein in the NSA's bulk collection of U.S. telephone records while allowing the agency to collect records in a more targeted manner.
The 77-17 vote for cloture on the USA Freedom Act sets up a final vote on the bill, but the Senate isn't likely to take action before Tuesday.
Section 215 of the Patriot Act, the provision that allows the NSA to collect any domestic telephone and business records relevant to a counterterrorism investigation, sunset at midnight Sunday.
Still, the Senate's cloture vote moves lawmakers closer to passage of the USA Freedom Act, which passed in the House of Representatives earlier in May.
Just eight days ago, a group of Republican senators who wanted to extend the Patriot Act with no new limits on bulk collection successfully blocked a final vote on the USA Freedom Act. At the same time, senators opposed to a straight extension of Section 215 also blocked efforts to make that happen.
Senate Majority Leader Mitch McConnell, a Kentucky Republican, had pushed for an extension of the Patriot Act with no new limits, but conceded Sunday that opposing senators had forced a vote on the USA Freedom Act. McConnell and his allies argued the Patriot Act's Section 215 is an important tool the U.S. government uses to fight terrorism, while critics argue the bulk collection of domestic phone records violates the Fourth Amendment to the U.S. Constitution, protecting citizens from unreasonable searches and seizures.
While a handful of senators spoke in favor of the USA Freedom Act, Senator Rand Paul, another Kentucky Republican, raised several concerns. The USA Freedom Act would prohibit the NSA from retaining U.S. telephone records, but telecom carriers would still hold those records, he said.
"The bill may be replacing one form of bulk collection with another," Paul said. "My concern is that under the new program, the records will still be sucked up into NSA computers, but the computers will be at the phone company."
In addition, the U.S. Foreign Intelligence Surveillance Court, the same secret court that allowed the NSA to collect U.S. phone records in bulk by defining all domestic phone records as relevant to a counterterrorism investigation, will be interpreting the new law, Paul said. "That doesn't give me a lot of comfort," he said.
Paul will push to introduce a handful of amendments to the USA Freedom Act, although it's unclear if other Senate Republicans will allow votes.
Senator Ron Wyden, an Oregon Democrat who has criticized the NSA program, called for passage of the USA Freedom Act, saying it was a good step forward toward ending bulk collection of U.S. records. Still, more surveillance reforms are needed beyond the bill, he said.
Several Republican senators voted against debate cloture, with some arguing a strong phone records collection program is needed to fight terrorism.
"Isn't the program as crucial as it's ever been since its inception given that the Middle East is literally on fire and we are losing everywhere?" said Senator John McCain, an Arizona Republican.
The USA Freedom Act "diminishes" the effectiveness of the NSA program, added Senator Dan Coats, an Indiana Republican. A "significant, unfortunate misrepresentation" of the NSA program by critics had led many U.S. residents to believe the NSA is listening to their phone calls, when it is only collecting phone records, he said.
Supporters of the NSA program have overstated its effectiveness, when government officials can point to no significant terrorism cases cracked through the phone records collection, Wyden countered.
Lawmakers who raise concerns that a narrowed program will lead to terrorist attacks are using scare tactics, Paul added. "We just have to not let those who are in power make us cower in fear," he said. "They use fear to take your freedom."
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is [email protected]