Call-data collecting by NSA begins ebb

Senate to return early, try again

WASHINGTON — The National Security Agency has begun winding down its collection and storage of American phone records after the Senate failed to agree on a path forward to change or extend the once-secret program ahead of its expiration at the end of the month.

Barring an eleventh-hour compromise when the Senate returns to session May 31, a much-debated provision of the USAPATRIOT Act — and some other, lesser known surveillance tools — will end at midnight that d ay. The change also would have a major effect on the FBI, which uses the act and the other provisions to gather records in investigations of suspected spies and terrorists.

In the wee hours of Saturday, Senate Republicans blocked a bill known as the USA Freedom Act, which would have ended the NSA’s bulk collection but preserved its ability to search the records held by the phone companies on a case-by-case basis. The

bill was backed by President Barack Obama, House Republicans and the nation’s top law enforcement and intelligence officials.

It fell just three votes short of the 60 needed for passage. Republican Sens. John Boozman and Tom Cotton of Arkansas voted against the measure.

All the “no” votes but one were cast by Republicans, some of whom said they thought the USA Freedom Act didn’t go far enough to help the NSA maintain its capabilities.

A bill to grant a twomonth extension of the law also failed, 54-45. Boozman and Cotton voted for the extension measure.

Sen. Mitch McConnell of Kentucky, the majority leader, then repeatedly asked senators to allow a shorter extension — even as short as one day — but Sen. Rand Paul, R-Ky., and his allies repeatedly objected and blocked the proposals.

McConnell then told senators to go home for their scheduled Memorial Day break. But he ordered them back a day early, May 31, just hours before the surveillance powers expire at midnight. It’s not clear what could happen before then to break the logjam, though, and the House isn’t scheduled to return from its break until June 1.

The failure to act means the NSA will immediately begin curtailing its searches of domestic phone records for connections to international terrorists. The Justice Department said in a statement that it will take time to taper off the collection process from the phone companies.

“This is a high-threat period,” McConnell said.

A senior administration official said Saturday that the “wind-down process has begun” on the surveillance program, and that the administration did not file an application with the Foreign Intelligence Surveillance Court on Friday to continue collecting the data. The White House has long said that the administration would not seek to continue the program if the legal authorization expired. Aspects of the program could be reactivated as allowed under new legislation if Congress acts before the deadline.

Winding down the program entails, in part, closing the automatic pipeline that pulls phone records into the NSA’s servers and databases and sealing off access to those computers so analysts don’t run afoul of the law, administration officials said. A complete shutdown will occur about 6 p.m. May 31, one official said.

A lapse in the programs could be as short as a few hours. If the lapse is prolonged, the NSA would re- purpose the computers and servers used in the program for other spy programs, an official said. Administration officials declined to comment about what other actions are being taken to mothball the programs.

While the phone records program has never been credited with thwarting a terrorist plot, the Senate failure also imperils other tools that the FBI has been using to hunt for suspected spies and terrorists.

The FBI uses Section 215 of the USAPATRIOT Act to gather financial and other types of records in national security cases. Another expiring provision makes it easier for the bureau to track “lone wolf ” terrorism suspects who have no connection to a foreign power, and another allows the government to eavesdrop on suspects who continuously discard their cellphones in an effort to avoid surveillance.

Paul, a Republican presidential candidate, called the Senate’s blocking an extension of the surveillance programs a victory for privacy rights.

“We should never give up our rights for a false sense of security,” Paul said in a statement.

Paul has made it clear that he wants the House bill, known as the USA Freedom Act, brought to the floor with an open amendment process so he can have the chance to toughen it. However, while the House bill has a strong chance of passing the Senate should McConnell stop pressuring Republicans to reject it, it is likely to be rejected with stronger language sought by Paul and others.

Democrats rose to complain angrily after the vote.

“Let’s be clear,” said Sen. Barbara Boxer, D-Calif. “We tried to protect this country and Republicans rejected it.”

Some civil-liberties groups joined Paul in praising the result, saying they would rather see the USAPATRIOT Act provision authorizing NSA phone collection expire altogether.

“For the first time, a majority of senators took a stand against simply rubber-stamping provisions of the Patriot Act that have been used to spy on Americans,” said Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office.

But Nuala O’Connor, CEO of the Center for Democracy and Technology, called the Senate’s inaction “inexcusable after two years of debate and bipartisan compromise.”

Section 215 of the USAPATRIOT Act, approved after the Sept. 11, 2001, terrorist attacks in the U.S., is used by the government to justify col- the “to and from” information about nearly every American landline telephone call.

When former NSA contractor Edward Snowden revealed the program in 2013, many Americans were angry that the NSA had their calling records. Obama ultimately announced a plan similar to the USA Freedom Act and asked Congress to pass it. He said the plan would preserve the NSA’s ability to hunt for domestic connections to international plots without having an intelligence agency hold millions of Americans’ private records.

Since it gave the government extraordinary powers, Section 215 of the act was designed to expire at midnight May 31 unless Congress renews it. An appeals court has ruled that the phone data collection does not comply with the law, but stayed the ruling while Congress debated.

Under the USA Freedom Act, the government would transition over six months to a system under which it queries the phone companies with known terrorists’ numbers to get back a list of numbers that had been in touch with a terrorist number.

Rep. Devin Nunes, R-Calif., chairman of the House Intelligence Committee, said the leaders of the Intelligence and Judiciary committees in both chambers would meet over the Memorial Day recess to seek a compromise.

The House bill includes a provision on how phone companies — not the government — would store metadata, which is the reams of information on all phone calls made between numbers, and the time and dates of those calls. The bill also allows for a six-month transition to that new system to develop the technology to store and search that data.

Nunes said key lawmakers would try to work out a certification process to determine after six months whether the change is technologically feasible. If not, a longer transition period could kick in. The lawmakers will also explore ways to protect the telephone companies from criticism by civil liberties activists over their role in the program.

Even if both chambers agree to an extension of the statute, the program might lapse. Obama would have to make the legal and political decision to ask the nation’s intelligence court for a new order authorizing the bulk phone logs program, and a U.S. District Court judge would have to agree that he was authorized to issue such an order.