A path forward on how Congress will reform or reauthorize the NSA's bulk data collection program may come down to which chamber of Congress acts last before the provision expires on June 1.
Last week, the House overwhelmingly passed the USA Freedom Act, 338-88, marking a bipartisan veto-proof majority which leaves the Senate in a precarious position. Both the House and Senate are scheduled to leave town at the end of the week, and while the House-passed bill has considerable opposition in the Senate, some say it may be the only choice they have. "You've got one of two choices: You either pass the House bill or pass nothing because you don't have time to do anything other than that," Sen. Patrick Leahy, a Democrat from Vermont who is the author of a similar piece of legislation in the Senate, told reporters today.
The USA Freedom Act would take the storage of telephony metadata authorized under Section 215 of the PATRIOT Act away from the government, and instead rely on telecom companies to hold the data, which could then be subpoenaed by the government.
House Majority Leader Kevin McCarthy, a California Republican, told reporters Monday that because the House had passed its bill with such strong support it had "no intention to wait around" past Thursday, when they are scheduled to leave town for the month around 1:30 p.m. ET. "If we have a bill with 338 votes why would we need to wait around?" McCarthy asked reporters.
That time crunch has complicated consideration of any FISA extension in the Senate, which is currently working through the fast-track Trade Promotion Authority (TPA) bill, a process that could potentially be slow-walked until the weekend by opponents of the measure.
Senate Majority Leader Mitch McConnell of Kentucky said Monday the Senate would not leave town until TPA was finished, and Congress must also address funding for federal highway and transit programs, which also expires at the end of the month.
But Senate Intelligence Committee Chairman Richard Burr (R-N.C.) says they could turn around and jam the House, if they were able to find a compromise to extend the program by week's end. Burr, along with McConnell, has introduced a clean five-year extension of the current data collection program, and calls the House passed bill "the same as expiration" of the current government program. "Everybody needs to realize that this act expires on June 1st, the House is back in session on June 1st, so it's not like they're going to jam us on Thursday, leave town and make us believe that we can't send them something else, we can," Burr told reporters.
One of the biggest concerns for those who are either on the fence or opposed to the USA Freedom Act is whether they have any assurances that telecom companies will hold onto the data long enough for the government to be able to utilize it. Currently, the USA Freedom Act would not mandate that telecom companies hold onto that data for any specified period of time, and it's unclear if the government would know how long that data would be held before being deleted.
"There are some of us that are concerned as to whether the telecoms will hold the data for at least two years, and that is an iffy thing," Senate Intelligence Committee Co-Chair Sen. Dianne Feinstein (D-Calif.) told reporters. Feinstein said she would support the USA Freedom Act.
Further complicating the debate is Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.), who have both threatened to filibuster any attempt to pass a clean extension of the program without reforms. Paul, who is running for the Republican nomination for President, famously filibustered the nomination of John Brennan for CIA Director for 13 hours in 2013 to express his opposition to the domestic use of drones.
"We've had a year, actually we've had three years, we've known this date was coming for three years, we ought to have full and open debate with an amendment process," Paul told reporters today of any attempt to reform or reauthorize the data collection program, "I will filibuster unless there's an open debate process and debate in amendments allowed."