Josh Chafetz of The Hill on what is being called a beautiful sunset “provision” for NSA bulk surveillance:
But this time was different, because of one simple but crucial, feature of the Patriot Act: a built-in expiration date, also known as a sunset provision. The USA Freedom Act did not simply curtail the NSA’s surveillance authority; it also reauthorized that authority, which is due to expire on June 1. This explains why Senate Majority Leader Mitch McConnell (R-Ky.) was so desperate to pass something: After the Freedom Act failed, he tried to get through a two-month extension of the NSA’s authority in its current state. That failed by an even bigger margin. He then attempted to get unanimous consent agreements for ever-shorter extensions, down even to one day, but Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.) objected. McConnell has vowed to try again when the Senate reconvenes on Sunday, May 31, hours before the NSA authority is set to expire. The NSA has reportedly already begun winding down the program.
The sunset provision turns out to be hugely important. Without it, the baseline for any future legislation would have been expansive NSA power, and any attempt to move away from this baseline — that is, any NSA reform bill — would have faced very high hurdles. But the sunset provision reset the baseline. Now the status quo, as of June 1, will be an absence of NSA metadata surveillance power. This new baseline forced the NSA’s defenders to come to the table in order to salvage as much of their surveillance powers as they could. And once they’re at the table, critics of the program have a chance to extract real concessions.
This does not mean, of course, that the critics will get everything they want. All but one of the Senate votes against the House measure came from Republicans, many of whom did not like the limitations that it placed on the NSA. But their subsequent inability to pass a clean extension of the NSA’s authority meant that the power shifted to civil libertarians like Paul, Wyden and Heinrich. Inaction — the default position — now favors their preferred outcome. Even if something is eventually passed restoring some of the lapsing authority, it will be something that takes significant account of the concerns of the NSA’s critics, and those critics will have the sunset provision to thank for it.
It would really be nice to see the mass surveillance die a quick death. Contrary to what spin the government would like to offer on these NSA programs, they are of little to no value in the grand scheme of the overall intelligence community capabilities.
Unfortunately, even if the Patriot Act section 215 dies, you can rest assured the NSA will use one of its many other authorities to continue its various bulk collection programs.