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 Leahy’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.

{mosads}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 Paul (R-Ky.) and Ted Cruz (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 McConnell (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 Udall (D-Colo.), one of the strongest advocates of tougher reforms to the NSA, lost his reelection race to Rep. Cory Gardner (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 Cotton (R-Ark.), who easily unseated Sen. Mark Pryor (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 Chambliss (Ga.), is retiring this year, opening the door for Sen. Richard Burr (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.