From an operational and policy perspective, the sunset really doesn’t matter. The bulk telephony metadata program will end, but they started winding that down a week ago, and will also have to end it under the USA Freedom Act. For all other purposes, grandfather clauses will allow the government to keep using the expired authorities for all their existing investigations, and even without that, as I observed at Vice‘s Motherboard last week, they’ve got plenty of overlapping authorities that would allow them to obtain most of the same information. The real significance of the sunset is symbolic and political: Mitch McConnell clearly believed the same script he’s been reading from for the past decade would still work, that he could fill the Senate schedule with trade promotion authority and oil pipelines until the eve of the sunset, then use the “crisis” he’d manufactured to strongarm senators into foregoing substantive debate on reform and voting for reauthorization without any changes, lest our spies “go dark” and the terrorist boogeyman du jour lay waste to the homeland. But it turns out Americans aren’t quite so scared of the dark anymore. The Patriot Act hasn’t expired—three provisions have lapsed quite temporarily—but the scaremongering strategy that birthed it is now, happily, well past its sell‐by date and starting to emit a noxious odor. That will be important as we head to 2017 and the debate over reauthorization of the FISA Amendments Act.
It now seems plain the USA Freedom Act will pass: the Senate voted to move forward on the bill by a vote of 77–17, opposed only by the strange bedfellows coalition of Rand Paul and 16 of the Senate’s most hardcore NSA cheerleaders. McConnell has proposed an array of amendments weakening or diluting it, though perhaps less because he think they’ll pass than because doing so “fills the tree” for amendments and prevents folks like Ron Wyden or Rand Paul from offering amendments that would strengthen the bill. Among these are a data retention “notice” mandate (which would compel phone companies to notify the government in advance if they plan to retain call records for less than 18 months, a way of encouraging without strictly requiring retention) and an amendment stripping away the crucial transparency provision that requires publication of significant FISA Court opinions, which is necessary to ensure that new safeguards can’t be secretly “reinterpreted” into irrelevance the same way the court secretly transformed §214 and §215 into bulk collection authorities. While unfortunately there are probably quite a few senators in the “yes” column on USA Freedom who would also favor these changes, they’re likely to meet strong opposition from both technology companies and civil liberties groups, and it seems at the very least doubtful they’d make it through the House. For those who purport to think it’s essential to extend the expiring powers quickly, that should be a powerful argument for just moving with the language the House has already approved, so it can go speedily to the President’s desk.