NSA bulk collection of phone data stops; Senate fails to act before deadline

The National Security Agency campus at Ft. Meade, Md.

May 31, 2015 1:34 PM PT

Reporting from Washington — After 14 years and hundreds of millions of records of Americans’ telephone calls, the National Security Agency stopped bulk collection of phone data Sunday, officials said, as legal authority for the once-secret program expired.

The move came as the Senate stalled on efforts to reform the agency’s authority. The portion of the 2006 Patriot Act amendments that the NSA has argued allows collection of telephone calling data and other records expired at midnight in Washington.

Late afternoon Sunday, intelligence officials said they had started shutting down the system for scooping up and recording phone call data, which was put in place after the Sept. 11, 2001, terrorist attacks. The NSA collects what it calls metadata — records that include the numbers called from a phone and the length of calls, but not the content of the conversations.

Officials said they planned to shut down the program entirely at midnight, although their actions, which are classified, can’t readily be verified.

On Sunday evening, the Senate voted 77 to 17 to advance a House-passed bill that would reform NSA surveillance. That legislation would end the bulk collection of telephone data. Under it, phone companies, not the government, would hold the call data, and intelligence agencies would be required to have a warrant to search it.

Under Senate rules, no final vote on that measure can take place until later this week unless all senators agree. Sen. Rand Paul (R-Ky.) refused, arguing that the House bill does not go far enough to rein in the intelligence agencies. His move guaranteed that the NSA’s legal authority would end, at least for now. The Senate appears likely to pass the House bill as early as Tuesday.

The lapse in the NSA’s power marks an important moment in the evolving U.S. response to the threat of terrorism. It is the first major legislative rebuff of domestic surveillance operations in the post-Sept. 11 era, and the most direct impact to date of the disclosures made by Edward Snowden, the former NSA contractor who revealed the existence of the data-collection program two years ago.

Paul conceded that the House bill ultimately would pass, but raised numerous questions about whether it goes far enough to curtail the NSA’s authority. Nevertheless, he declared a victory.

“Through my slowing the process down, talking about the Patriot Act, we now will end bulk collection of records,” said Paul, who has made opposition to surveillance one of the centerpieces of his campaign for the 2016 Republican presidential nomination.

“My concern is we might be exchanging bulk collection by the government [for] bulk collection by the phone companies,” he said.

Supporters of the NSA denounced Paul’s actions. Sen. Dianne Feinstein (D-Calif.), the senior Democrat on the Senate Intelligence Committee, accused him of acting “for his own political gain.”

“Holding critical national security programs hostage to raise political donations is outrageous, but that’s where we stand today,” Feinstein said in a statement.

The White House called the House bill a “reasonable compromise” and urged the Senate “to ensure this irresponsible lapse in authorities is as short-lived as possible.”

“On a matter as critical as our national security, individual senators must put aside their partisan motivations and act swiftly,” the White House said in a statement from Press Secretary Josh Earnest.

Debate over the program has sharply divided both the parties, but the split among Republicans has been the most vivid. The division has become a major element in the party’s presidential campaign and a key factor stalling Senate action.

As the process of shutting down the surveillance apparatus began, senators returned to the Capitol for a rare Sunday session facing a deadline, with no clear plan for meeting it.

Tensions spilled over quickly as Sen. John McCain of Arizona, who is a strong supporter of the NSA’s surveillance efforts, tried to prevent Paul, his fellow Republican, from speaking.

“This is what we fought the revolution over,” Paul thundered once he was allowed to speak. “This is a debate over your right to be left alone.”

The Senate visitors’ gallery was packed with Paul supporters wearing red T-shirts.

“People say, ‘How will we protect ourselves?’” without surveillance, he said, responding, “Use the Constitution…. Get a warrant.”

Paul sought to pin the program on the current administration, saying, “President Obama set this program up.”

The program was established by the George W. Bush administration without congressional authorization late in 2001. In 2006, after passage of the Patriot Act amendments, the Bush administration won approval from the Foreign Intelligence Surveillance Court, which meets in secret, to continue the program under the Patriot Act’s section 215.

Over the last two years, however, the Patriot Act has come under increasing criticism from a coalition of liberal Democrats and libertarian-leaning Republicans. The Obama administration last year proposed ending the government’s collection of telephone data and instead having telephone companies hold the information. Obama said, however, that he would keep the current program intact until Congress acted on an alternative.

An effort last year to reform the NSA’s authorities also stalled in the Senate.

A federal appeals court this spring ruled that the Patriot Act did not provide legal authority for the collection of millions of telephone records. But noting that the law was about to expire, the judges said they would put their ruling on hold for a few weeks while Congress debated whether to renew it.

The House passed its bill, the USA Freedom Act, in mid-May to limit the NSA’s powers. That bill has support from the administration and a broad bipartisan swath of senators, but had been blocked in the Senate by Majority Leader Mitch McConnell (R-Ky.). He and other defense hawks in the GOP wanted to keep the program running as is, without changes.

McConnell reversed course Sunday and voted to advance the House bill.

On the other side, a group of senators led by Paul and Democrat Ron Wyden (D-Ore.) have pushed to rein in the NSA.

“I believe that dragnet surveillance violates the rights of millions of our people every day,” said Wyden, who joined all Democrats in voting to advance the House-passed reform bill.

Although McConnell backs the presidential bid of Paul, his fellow Kentucky senator, the two are at odds on the surveillance issue. Speaking Sunday, McConnell referred bitterly to “demagoguery” and a “campaign of misinformation” regarding the NSA program, although he did not identify anyone as responsible.

Tension ran high at a closed-door party meeting Sunday evening, which Paul said he purposefully avoided.

Obama has warned against taking away what his national security team contends is a vital tool needed to root out terrorist threats at home and abroad.

Speaking on CBS’ “Face the Nation” on Sunday morning, CIA Director John Brennan decried “political grandstanding” and said Congress should extend the program. “These tools are important to American lives,” Brennan said.

Paul and other opponents of the NSA argue the collection of telephone data is not worth the infringement on civil liberties and believe the nation can be better protected if the program is scrapped and redone.

Paul’s stance has drawn sharp rebuke from several rivals for the Republican nomination. On Sunday, Jeb Bush, the former Florida governor, said that the nation’s security would be at risk if the Senate failed to reauthorize the law, which his brother enacted as president.

“There’s no evidence, not a shred of evidence, that the metadata program has violated anybody’s civil liberties,” Bush said, speaking on “Face the Nation.”

Sen. Marco Rubio (R-Fla.) joined Paul in opposing the House-passed bill Sunday. Fellow Republican presidential candidate Sen. Ted Cruz of Texas voted in favor, as did Sen. Bernie Sanders, the Vermont independent who is running for the Democratic nomination.

Two other parts of the Patriot Act that are set to expire would limit other aspects of the NSA’s surveillance operations that have been less contested. Those include the “lone wolf” provision, which allows the government to apply for court permission to wiretap an individual suspected of terror activities who is not part of a larger group, and another that allows the government to conduct “roving wiretaps” as suspects switch phones.

[email protected]

Twitter: @LisaMascaro

Times staff writer Brian Bennett contributed to this report.