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U.S. Surveillance in Place Since 9/11 Is Sharply Limited

In a significant scaling back of national security policy formed after the Sept. 11, 2001, terrorist attacks, the Senate on Tuesday approved legislation curtailing the federal government's sweeping surveillance of American phone records, and President Obama signed the measure hours later.

The passage of the bill -- achieved over the fierce opposition of the Senate majority leader -- will allow the government to restart surveillance operations, but with new restrictions.

The legislation signaled a cultural turning point for the nation, almost 14 years after the Sept. 11 attacks heralded the construction of a powerful national security apparatus. The shift against the security state began with the revelation by Edward J. Snowden, a former National Security Agency contractor, about the bulk collection of phone records. The backlash was aided by the growth of interconnected communication networks run by companies that have felt manhandled by government prying.

The storage of those records now shifts to the phone companies, and the government must petition a special federal court for permission to search them.

Even with the congressional action, the government will continue to maintain robust surveillance power, an authority highlighted by Senator Rand Paul, Republican of Kentucky, whose opposition to the phone records program forced it to be shut down at 12:01 a.m. Monday. Mr. Paul and other critics of the legislation said the government's reach into individuals' lives remained too intrusive.

The bill cleared the Senate 67 to 32 after a fierce floor fight; at least four of the opponents voted no because they felt the bill did not go far enough.

Mr. Obama was quick to praise passage of the legislation and to scold those who opposed it.

"After a needless delay and inexcusable lapse in important national security authorities, my administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country," Mr. Obama said. "Just as important, enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs."

The Senate's longest-serving member, Patrick J. Leahy, the seven-term Democrat of Vermont, said the legislation, which he co-sponsored, represented "the most significant surveillance reform in decades."

The fight for the changes was led largely by Democrats and a new generation of Republicans in the House and the Senate who were elected a decade after the terrorist attacks. Even as threats have multiplied since then, privacy concerns, stoked by reports of widespread computer security breaches at private companies, have shifted public opinion.

"National security and privacy are not mutually exclusive," said Senator James Lankford, Republican of Oklahoma, a freshman who like several other younger Republicans voted against the senior senator from his state. "They can both be accomplished through responsible intelligence gathering and careful respect for the freedoms of law-abiding Americans."

Tuesday's vote was a rebuke to Senator Mitch McConnell, Republican of Kentucky and the majority leader, who, until the end in a bitter floor speech, maintained the bill was a dangerous diminishment of national security. Lawmakers in both parties beat back amendments -- one by one -- that he insisted were necessary to blunt some of the bill's controls on government spying.

Mr. McConnell blasted his fellow senators -- and by association Speaker John A. Boehner, who heartily endorsed the measure -- as taking "one more tool away from those who defend our country every day."

"This is a significant weakening of the tools that were put in place in the wake of 9/11 to protect the country," he said. "I think Congress is misreading the public mood if they think Americans are concerned about the privacy implications."

But even scores of senators who loathed the actions of Mr. Snowden voted for the legislation.

The legislation's goals are twofold: to rein in aspects of the government's data collection authority and to crack open the workings of the secret national security court that oversees it. After six months, the phone companies, not the N.S.A., will hold the bulk phone records -- logs of calls placed from one number to another, and the time and the duration of those contacts, but not the content of what was said. A new kind of court order will permit the government to swiftly analyze them.

The Foreign Intelligence Surveillance Court, for the first time, will be required to declassify some of its most significant decisions, and outside voices will be allowed to argue for privacy rights before the court in certain cases.

The battle over the legislation, the USA Freedom Act, made for unusual alliances. Mr. Boehner joined forces with Mr. Obama, the bipartisan leadership of the House Judiciary Committee, and a bipartisan coalition of senators against Mr. McConnell and his Intelligence Committee chairman, Senator Richard Burr, Republican of North Carolina.

Mr. McConnell made a series of miscalculations, stretching back to last year, when he filibustered a similar surveillance overhaul measure. Last month, after Republicans blocked consideration of the Freedom Act, Mr. McConnell sent the Senate on a weeklong Memorial Day recess, pushing Washington up against a June 1 deadline, when surveillance authority would lapse.

That empowered Mr. Paul, who promised supporters of his presidential campaign that he would single-handedly ensure that surveillance authority lapsed, a promise on which he delivered. When Mr. McConnell then argued in favor of amending the Freedom Act, senators in both parties -- even some who supported him -- said any changes would only extend the surveillance blackout and risk the country's security.

Mr. McConnell dragged senators back for an unusual Sunday session, only to end up with the very bill he tried to kill.

"This should have been planned on over a week ago," said Senator Bill Nelson, Democrat of Florida, who had backed Mr. McConnell's efforts but found his timing untenable.

In a heated meeting of House Republicans on Tuesday morning, one of the architects of the post-Sept. 11 USA Patriot Act, Representative Jim Sensenbrenner of Wisconsin, angrily told Senator John Barrasso of Wyoming, an emissary from the Senate leadership, to deliver a message to his colleagues: Any change to the House bill would be flatly rejected.

About a dozen Republican senators -- most of them recent House members -- took the warning to heart, joined Democrats and voted down all of Mr. McConnell's proposed changes.

As the debate over the bulk phone records program unfolded, supporters and opponents both trotted out worst case scenarios to make their argument. Opponents warned that the government could root through the records to learn who was calling psychiatrists and political groups, while supporters said ending it would lead to terrorist attacks on the United States.

Neither of those warnings was supported by how the program had performed in its nearly 14 years of existence. Repeated studies found no evidence of intentional abuse for personal or political gain, but also found no evidence that it had ever thwarted a terrorist attack.

Still, the debaters on each side also made other points. Opponents said that the mere collection of Americans' calling records by the government was a privacy violation and that it risked being abused in the future. Supporters said it had helped flesh out investigations in other ways, and could still prove to be crucial in the future.

Senator Mike Lee, a Utah Republican, and Senator Leahy made it clear after passage that curtailing the phone sweeps might be only the beginning. The two are collaborating on legislation to undo a provision in the Electronic Communications Privacy Act of 1986 that allows the government to read the contents of email over six months old. House members and senators from both parties are already eyeing a section of the Foreign Intelligence Surveillance Act that they say has also been abused by the government.

But opponents of the law said they imagined further fights going forward for their positions, too. Senator Susan Collins, Republican of Maine, said she and others would continue to seek reforms and oversight.

"It's not the end," she said.

[Source: By Jennifer Steinhauer and Jonathan Weisman, The New York Times, Washington, 02Jun15]

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Privacy and counterintelligence
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