Backed up against a rapidly approaching do-or-die deadline, bipartisan lawmakers are poised to introduce legislation next week that would roll back the National Security Agency’s expansive surveillance powers.
The legislation could land as soon as Tuesday in the House, congressional aides and privacy advocates said, who would only speak on condition of anonymity because of the sensitivity of the negotiations.
The bill, known as the USA Freedom Act, would effectively end the NSA’s bulk collection of U.S. phone metadata—the numbers, time stamps, and duration of a call but not its actual content—by instead relying on phone companies to retain that data. The program is the first and one of the most controversial spying programs exposed by the Edward Snowden leaks that began nearly two years ago.
House Judiciary Committee Chairman Bob Goodlatte and Rep. John Conyers, the panel’s top Democrat, are expected to back the bill, as is Rep. Jim Sensenbrenner, the author of the original Freedom Act that first emerged in the fall of 2013, and Rep. Jerry Nadler. All four have been intensely involved in negotiations since the measure fell apart in Congress late last year.
But as the House barrels ahead, it remains unclear what strategy the bill’s advocates in the Senate, led chiefly by Sen. Patrick Leahy, intend to deploy. That question is complicated by the implications a fractious national security debate could have for the Republican caucus, whose three presidential aspirants—Sens. Ted Cruz, Rand Paul, and Marco Rubio—have adopted increasingly divergent positions on NSA surveillance.
(Related: The Future of NSA Reform, GOP 2016 Edition)
Whatever the strategy, lawmakers in both chambers need to move quickly, since the bill’s introduction arrives as the window of opportunity for reforming the nation’s surveillance activities is rapidly closing. Core provisions of the post-9/11 Patriot Act are due to sunset on June 1, including the controversial Section 215, which the NSA uses to authorize its dragnet surveillance of Americans’ call data. The Freedom Act would reauthorize these authorities, preserving expiring capabilities the intelligence community has said are vital to national security while ushering in more strident privacy protections and transparency requirements.
Reform advocates close to the negotiations have privately conceded that any substantive overhaul of the NSA appears unlikely after that deadline—and lawmakers are skittish about letting those authorities expire completely.
Despite the obstacles, aides close to negotiations believe they have enough momentum to push the legislation through Congress fast enough for the president to sign it by June 1. The White House said last year it was supportive of the reform package.
“We are quickly converging on a set of two choices for the leadership in both the House and the Senate,” said one congressional staffer working on the legislation. “Either they can take a consensus reform package that could pass both chambers with overwhelming support, or they can have a knockdown, drag-out fight over clean reauthorization. And the choice is one or the other.”
Crucially, staffers for Senate Judiciary Chairman Chuck Grassley are said to be heavily engaged in discussions regarding the legislation’s content. Last year, the Iowa Republican, then the ranking member on the panel, voted down the Freedom Act, but his new gavel has brought him to the negotiating table with renewed interest, sources said.
The bill’s negotiators had originally targeted this past Tuesday for introduction, but that plan was shelved in favor of a final round of dialogue intended to lure more support from lawmakers concerned about any potential restriction to the nation’s intelligence services.
Though negotiators had hoped to get Grassley on board in order to have both chambers introduce the bill simultaneously, that approach now appears unlikely. The strategy now will call for the House to quickly mark up the bill in the Judiciary Committee and take it to the House floor in hopes of earning a lopsided victory.
“It’s not entirely impossible that Grassley would be named cosponsor,” a privacy advocate close to the negotiations said. “I think that’s increasingly unlikely, but it’s not out of the realm of possibility.”
A version of the Freedom Act passed the House last spring 303-121 before a more comprehensive package died in the lame-duck Senate, falling just two vote shorts of the filibuster-proof 60 needed to advance. All but four Republicans rallied to block the measure due to fears it could bolster terrorist activity, despite wide-ranging support from tech companies, privacy advocates, the White House, and even senior members of the intelligence community.
The defeat was seen as a crushing blow to the post-Snowden movement to overhaul the nation’s sweeping surveillance apparatus—a sting made worse by the GOP takeover of the Senate.
But instead of giving up, lawmakers began a new process earlier this year, believing they had one last shot at enacting strong reforms before the Patriot Act sunset.
Sources said the new language is closer to last year’s Senate version than one that passed the House, which suffered a loss of support from privacy and tech interests due to amendments made by House leadership in the 11th hour.
One privacy advocate used a scale of 1 to 100 to indicate how strong the bill is on civil liberties. “If the House-passed version was a 60, and the Senate cloture was 80, this is a 73 or 74,” the advocate said.
Multiple sources indicated the language being floated preserves “nearly identical” language to the Senate version with regards to tightening the definition of a “specific selection term,” or what the NSA is allowed to use as a target when conducting a search of phone data. Widely encompassing terms, such as an area code, would be prohibited.
In addition, the bill would allow, but not require, the Foreign Intelligence Surveillance Court to consult a panel of privacy experts when reviewing cases.
Tech companies are also said to be largely receptive to the bill being circulated, as it would allow them more leeway in disclosing the amount surveillance orders they receive.
Still, the measure faces several significant hurdles in both chambers before it can get to the president’s desk. House Majority Whip Kevin McCarthy said in a memorandum to members earlier this month that the chamber “may” consider the Patriot Act reauthorization this month, without providing more specifics. But earlier this year, House Speaker John Boehner went out of his way to defend the surveillance program, saying it helped thwart a recent plot to blow up the U.S. Capitol.
The Senate, meanwhile, will need enough Republicans to vote for a bill many view as potentially soft on national security—and endure a potential sideshow among Sens. Cruz, Paul, and Rubio, each of whom may try to leverage the issue to score political points. While Cruz voted for the Freedom Act last year, Paul and Rubio voted it down, though for opposing reasons. Rubio warned the bill could bolster terrorists and jeopardize American lives, while Paul said it did not go far enough.
Paul’s vote against the bill was viewed as especially significant, given his position as a libertarian-leaning Republican who has vowed to end NSA spying “on day one” if elected president. Though he contends he cannot vote for any measure that reauthorizes the Patriot Act, some observers have suggested his vote was an attempt to keep the surveillance debate alive in order to bolster his White House campaign.