Congress Pursues Deal on Phone Data Collection in Rare Talks During Recess
WASHINGTON — Senior lawmakers are scrambling this week in rare recess negotiations to agree on a face-saving change to legislation that would rein in the National Security Agency’s dragnet of phone records, with time running out on some of the government’s domestic surveillance authority.
Representative Devin Nunes, Republican of California and chairman of the House Intelligence Committee, said a series of phone calls and staff meetings over the weeklong Memorial Day break should be enough to reach agreement on changes to the USA Freedom Act. Three senators need to be won over for the Senate to pass the USA Freedom Act, which has already been approved by the House and would change the post-Sept. 11 Patriot Act’s provision that the N.S.A. has used to sweep up phone records in bulk.
“That is the goal: Work it out over the break,” Mr. Nunes said.
If negotiators accept minor changes to the House bill, it will mark a significant retreat for Senator Mitch McConnell of Kentucky, the majority leader, and Senator Richard M. Burr of North Carolina, the chairman of the Senate Intelligence Committee. The two men have said phone companies, which would collect the data instead of the N.S.A. under the USA Freedom Act, are not equipped to handle the task.
Even face-saving changes will be difficult. Representative Jerrold Nadler, Democrat of New York and one of the authors of the House bill, said the demands of Senate Republicans were “a lot of nonsense.” Democrats and many libertarian-minded Republicans would rather allow any eavesdropping authority to lapse than to give in.
“We’ve compromised a lot,” Mr. Nadler said. “I don’t see why we should compromise anymore.” He added that he had not been contacted about any negotiating session.
Mr. McConnell and Mr. Burr wanted a straight extension of the existing surveillance authority, although an appeals court judge ruled this month that such authority was illegal.
The Senate left Washington on Saturday with the government’s surveillance program in disarray after lawmakers mustered only 57 of the 60 votes needed to pass the House bill. The legislation would stop the N.S.A. from using a section of the Patriot Act to justify collecting reams of so-called metadata from phone companies — information that shows virtually every phone call, the numbers called and the times of the calls. Instead, the phone companies would hold those records, accessible to the N.S.A. through a search warrant.
Mr. McConnell pressured senators against accepting the bill, which the House had passed 338 to 88. But just before 1 a.m. Saturday, only 45 senators voted in favor of a simple two-month extension of existing law, 15 short of the number necessary to break a filibuster. Senator Rand Paul, Republican of Kentucky, and civil liberties allies then objected to shorter-term extensions, even one for just a day.
Some leaders of the House Intelligence Committee, along with supporters in the Senate, hope they can assuage the concerns of Senate Republicans by adding a certification process to ensure that telephone companies had developed the technology they needed to store the reams of data that were now gathered by the government. If the technology could not be certified, a longer transition period would kick in.
Mr. Burr said he would like that period to be two years, a proposal not very likely to be accepted by the House.
“The question is whether the technology can be developed in time, over a six-month window,” Mr. Nunes said in an interview. “I think it can be. I was at N.S.A. reviewing this 10 days ago.”
He added: “We believe six months works, but it wouldn’t be bad to have a little longer.”
But even that change has irked lawmakers, who worked for months on the compromise that passed the House. Representative Adam B. Schiff of California, the ranking Democrat on the House Intelligence Committee, said the technology in question — the ability to search stored phone data after a warrant is issued, then communicate the results to the government — was “a pretty minor deal” that could easily meet a certification deadline.
But adding that certification provision would greatly complicate the legislative task, he said, simply for Republican leaders in the Senate to save face.
“If you go and monkey around with the USA Freedom Act now, you will definitely have a lapse in capabilities,” he said Monday. “That seems patently unnecessary.”
Lawmakers trying to find a solution are racing against the clock. Mr. McConnell has called the Senate to return from its recess on Sunday for a vote ahead of the expiration on Monday of the Patriot Act’s Section 215, which has been the legal justification for the dragnet first exposed by the fugitive N.S.A. contractor Edward J. Snowden.
But the House would have to act by the end of Sunday as well. If Congress does not enact a replacement law or short-term extension by then, the text of Section 215 will revert to what had been written before 2001. That appears to mean that Congress would have to write a different bill that would recreate the post-2001 statutory language if lawmakers wanted it to linger.
The USA Freedom Act would push back the expiration date listed in the federal statute books for Section 215 by 180 days to create time for a transition to a new system in which the phone records would remain with the phone companies.
That hard deadline again puts the fate of Section 215 in the hands of Mr. Paul, who has made his stand against government surveillance central to his presidential aspirations, with hourslong talkathons on the Senate floor, accompanied by fund-raising pitches and the selling of filibuster souvenirs.
If he objects to an immediate vote on a compromise, a lapse in authority appears inevitable, and rebuilding it will not be easy.
“This whole argument is just a circus act, and it’s just unfortunate,” Mr. Nunes said. “We’ve wasted a considerable amount of legislative time, both in the House and the Senate, on something that is really trivial. This is a program that is very important but very seldom used.”
Negotiators will also try to resolve two other surveillance authorities that expire Monday. One makes it easier for the F.B.I. to track terrorism suspects no longer connected to a foreign power. Another allows the F.B.I. to obtain a warrant to track a person rather than a device, allowing agents to eavesdrop on suspects who discard their cellphones to cover their tracks.
Mr. Burr wants the so-called lone wolf and roving authorities to be made permanent to avoid cliffhangers like the one Congress finds itself in now. The House bill would extend them to December 2019.
Security-minded lawmakers on the House and Senate Intelligence Committees are likely to accept some toughening of the House bill.
“Burr has a few changes that he wants to make that I think are reasonable,” said Mr. Nunes, who has said he would have simply extended existing surveillance authority if that was politically and legally tenable.
Republicans have also expressed a desire to protect the phone companies against harassment from privacy activists over their participation in a new surveillance program.
“We have members of Congress at both extremes,” said Representative Jim Sensenbrenner of Wisconsin, a senior Judiciary Committee Republican and an author of the Patriot Act. “On one end, a small minority wants to extend the illegal program as is. At the other end, we have members who would prefer losing the authorities entirely. The USA Freedom Act is the compromise.”
He added: “If the Senate wants to extend these authorities — and it should — it needs to get behind the USA Freedom Act. Otherwise, Senator Paul will win by default.”
Source: New York Times