Key provisions of the Patriot Act officially expired at midnight on Monday – at least temporarily – after the Senate adjourned after failing to reach an extension agreement on Sunday, largely due to efforts led by Sen. Rand Paul.
Three provisions expired: Section 215, which the NSA uses to justify the bulk collection of Americans' phone and Internet records and was ruled illegal this month by a federal court; a roving wiretap provision that law enforcement officials use to monitor terror suspects who use multiple phones; and a program used to monitor "lone wolf" terror suspects.
The NSA began shutting down its servers which carry out the programs at 4:00 p.m. Sunday, according to The Associated Press.
The Senate met in a rare Sunday session in a last minute attempt to extend the NSA's spying authority, but after a late-night vote, lawmakers failed to approve the only legislation that would have averted a lapse – the House-passed USA Freedom Act reform measure. That bill is also supported by President Obama and the intelligence community.
The modest reform legislation, which Paul and many privacy advocates oppose, would attempt to end the NSA's bulk collection of phone records under Section 215 of the post-9/11 Patriot Act.
In a 77 to 17 vote, the 100-member chamber was able to pass a key procedural hurdle, known as cloture, to move forward with the USA Freedom Act, but Paul managed to use rules of the Senate to delay action.
"People who argue the world will end tonight are trying to use fear," Paul said during an impassioned speech the Senate floor. "They want to take your liberty by making you afraid. They tell you if you have nothing to hide, you have nothing to fear. That's a far cry from the standard we were founded upon -- innocent until proven guilty ... We should not be debating modifying an illegal program. We should simply end this illegal program."
The Senate will vote next to end debate on the measure on Tuesday, along with amendments intended to appease Senate Majority Leader Mitch McConnell, who just last week strongly opposed the compromise, favoring a straight passage of the Patriot Act.
"We shouldn't be disarming unilaterally as our enemies grow more sophisticated and aggressive, and we certainly should not be doing so based on a campaign of demagoguery and disinformation launched in the wake of the unlawful actions of Edward Snowden," McConnell said from the Senate floor, reported AP.
But he eventually conceded, saying passing the USA Freedom Act is "not ideal but, along with votes on some modest amendments that attempt to ensure the program can actually work as promised, it's now the only realistic way forward," reported the Washington Times.
The law could be approved as early eas Tuesday or Wednesday, even if opposition continues their fight, sources told Politico.
The USA Freedom Act would reauthorize Section 215, but with a few changes. Phone companies, rather than the government, would be responsible for holding the phone data, and intelligence agencies would be limited to collection in instances where there is "reasonable, articulable suspicion" that a "specific selection term" used to request data is associated with terrorism, according to the Electronic Frontier Foundation (EFF). It would also provide more transparency to the secretive Foreign Intelligence Surveillance Court that approves NSA spying requests.
In a statement released Sunday night, White House spokesman Josh Earnest applauded the Senate for taking "an important-if late-step forward tonight," reported The Hill.
"We call on 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 American people deserve nothing less," Earnest said.
Computer security expert Bruce Schneier told BBC that the likely passage of the USA Freedom Act is "not a big win."
"There are still many ways the NSA can spy on Americans and people overseas through other provisions. The changes are minimal and this is very much a symbolic victory, but it's still a symbolic victory," he said.
As the EFF notes, the USA Freedom Act does not end the majority of the NSA's mass surveillance, such as Section 702 of the FISA Amendments Act or Executive Order 12333. The NSA uses these laws to collect content of communications directly from the physical infrastructure of communications providers, including emails, social media messages, web browsing history and more.
