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 If the U.S. Congress fails to act, key provisions of the USA
Patriot Act will lapse in a watershed moment in the post-Sept. 11,
2001, era. Intrusive government powers, created and wielded in the
name of preventing another mass-casualty terrorist attack, would be
at least partly scaled back, proponents and critics of the
surveillance say.
The Federal Bureau of Investigation, for instance, will no longer be
able to employ "roving wiretaps" aimed at terrorism suspects who use
multiple disposable cell phones, and will have more difficulty
seizing such suspects' and their associates' personal and business
records.
"We're past the immediate aftermath of the 9/11 attack. And we can
look at these issues more calmly," said Peter Swire, who served on a
review panel appointed by President Barack Obama after former
contractor Edward Snowden's 2013 revelations of vast NSA
surveillance.
With the clock ticking, a coalition of Senate Republican
libertarians and security hawks has blocked action on new
legislation known as the USA Freedom Act that would reform the bulk
telephone data program but not kill it.
 Libertarians want the program ended altogether, while the hawks
argue it should be maintained as it is now.
Currently, telecom providers are legally required to send phone
records to the government. The USA Freedom Act would require private
firms to hold the data, which the NSA could search with court
authorization.
The U.S. Senate is scheduled to hold a special session to consider
the legislation at 4 p.m. on Sunday - just as security officials say
they have to begin shutting the NSA program down to meet a midnight
deadline. The USA Freedom Act already has passed the House of
Representatives and has Obama's strong support.
It is unclear if supporters of the Freedom Act can get the 60 votes
needed in the Senate to move forward. A previous attempt on May 23
fell short, 57-42, but the bill's backers have been pushing hard to
win over three more senators.
How badly U.S. counter-terrorism efforts would be disrupted by even
a temporary suspension of the telephone data collection and other
legal authorities is disputed.
The Obama administration is issuing increasingly dire warnings,
sometimes citing Islamic State's calls on its supporters to conduct
attacks wherever they live.
"The intelligence community will lose important capabilities,"
Director of National Intelligence James Clapper said in a statement.
"At this late date, prompt passage of the USA Freedom Act by the
Senate is the best way to minimize any possible disruption of our
ability to protect the American people."
But many experts and civil liberties advocates say that U.S.
intelligence and law enforcement authorities have other powerful -
and less objectionable - tools to investigate and prosecute militant
plots. Those include court orders, subpoenas and other forms of
electronic surveillance. "The government still has expansive ... law enforcement tools that
will remain in place," said Anthony Romero, executive director of
the American Civil Liberties Union.
Groups as diverse as the left-leaning ACLU and the conservative Tea
Party Patriots argue the telephone data program in particular is
unconstitutionally broad, targeting the communications of millions
of innocent Americans.
Earlier this month, a federal appeals court ruled the program was
illegal, going beyond what the Patriot Act authorized. The court
declined to halt the program, saying it would give Congress a chance
to act.
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"COLLECTING THE DOTS"
The bulk telephone records program, first exposed to journalists by
Snowden, collects metadata - data that provides information about
other data - about U.S. citizens' phone calls. This includes the
number dialed and time and length of the call but not the content of
the conversation.
Senior U.S. officials have said the surveillance fills a critical
gap, determining whether a militant overseas is communicating with
someone inside the United States.
Swire, a privacy and cyber security expert and a professor of law
and ethics at the Georgia Institute of Technology, said the 2013
presidential panel he served on "looked at the classified file and
concluded that telephone metadata had not been essential to
preventing any attack."
Current and former U.S. intelligence officials say that is the wrong
yardstick to use.
"Very seldom do we have one (single) piece of information" that
prevents a terrorist attack, said Richard Schaeffer, a former top
NSA official. "It is literally collecting the dots" and piecing them
together, he said.
Current U.S. officials seem even more chagrined about losing other
powers that could expire at midnight Sunday. Those, they argue, were
never controversial but have been caught up in the backlash against
government intrusion.
One, known as the "lone wolf" provision, allows the FBI to seek a
wiretap on an individual if that person is suspected of terrorist
activity, even if the individual cannot be linked to a specific
group. Law enforcement officials have never used that power.
But, a senior U.S. official said, "this is not a tool that we want
to see go away."
The provision giving the FBI expanded powers to seek a terrorism
suspect's records such as hotel stays and car rentals is used about
200 times per year, officials said.
The roving wiretap provision, in which a court authorizes tapping an
individual's communications regardless of the device used, rather
than a specific phone number, has been used most commonly in law
enforcement rather than terrorism cases, said Stewart Baker, a
former top Homeland Security official.
"But it's not an authority we would want to lose," he said.
(Additional reporting by Patricia Zengerle and Richard Cowan;
Editing by Leslie Adler)
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