Expired Patriot Act provisions reveal shift in NSA debate

Split between concerns about national security and concerns over civil liberties, the Senate over the weekend failed to coalesce around the USA Freedom Act, a bill that would have reined in one of the National Security Agency's controversial surveillance programs.

Instead, the Senate ended up letting that bulk phone records collection program, along with two other NSA authorities, expire. The Senate will pick up the debate on Tuesday, starting with another procedural vote on the USA Freedom Act. In the meantime, the NSA can no longer rely on a program that the intelligence community calls a critical tool. Civil liberties advocates, however, insist the NSA still has the significant surveillance capabilities it needs to keep the nation safe.

While the debate over the NSA's authorities continues, it's clear that the nature of the discussion has changed significantly since former government contractor Edward Snowden exposed the government's sweeping surveillance programs in 2013.

The fact that Congress has shown more interest in reforming the NSA with the USA Freedom Act, as opposed to extending the surveillance programs as they exist, "really shows the tide is starting to turn," said Nadia Kayyali, an activist at the nonpartisan privacy group the Electronic Frontier Foundation (EFF).

"What the appropriate next step is, there's disagreement among [privacy] advocates as well as in Congress," Kayyali told CBS News. But "thanks to Edward Snowden and thanks to all the people who have called and written to Congress, the conversation has changed."

Are we at greater risk?

While most members of Congress and the White House are ready to reform the NSA's surveillance activities, there's still a large contingent of lawmakers who think it'd be unwise to simply let these three provisions of the Patriot Act expire.

Even President Obama last week suggested their lapse could put Americans at risk: "I don't want us to be in a situation in which for a certain period of time those authorities go away and suddenly we're dark, and heaven forbid we've got a problem where we could've prevented a terrorist attack or apprehended someone who was engaged in dangerous activity," he said.

Sen. Richard Burr, R-North Carolina, chairman of the Senate Intelligence Committee, acknowledged to CBS News' Nancy Cordes on Monday that Americans aren't facing immediate risks because of the temporary lapse in Section 215 of the Patriot Act, which authorizes the bulk collection of phone records.

"I think a few days isn't debilitating to us," he said.

However, he added, "To take this tool away, to drastically change it in a way that isn't effective, would be a grave national security mistake."

Once the Senate takes up the USA Freedom Act this week, Burr is expected to offer amendments to the bill that would weaken its reforms. Kayyali said that Burr's warning amounts to "tired fear-mongering arguments" he's using to build support for those amendments.

"Do I think that we're less safe than we were yesterday? No, absolutely not," she said.

How much does the bulk collection of phone records matter?

Privacy advocates say it's hard to believe Section 215 of the Patriot Act helps keep the nation safer, given the paltry evidence to back that up.

"There's been no evidence the call records program is effective in any sense of the word," Patrick Toomey, a staff attorney in the ACLU's National Security Project, told CBS News.

A report released last month by the Justice Department's Inspector General says that FBI personnel were "unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders."

Last year, a government review board called on the Obama administration to abandon the mass data collection program, declaring that it could not find a single instance in which the program made a concrete difference in a counterterrorism investigation. President Obama's own review group similarly concluded in 2013 that "the use of section 215 telephony meta-data was not essential to preventing attacks."

While it may be hard to prove the program is "essential," Burr argued that it certainly helps keep the nation safe.

"In the case of the Boston bombing, we used 215 to see if they were any international connections to the Tsarnaev brothers," he told Cordes. "In that case... it aided our investigation right from the start."

Without Section 215 at its disposal, intelligence agencies still have a number of other surveillance tools they can rely on. For instance, the FBI can still use national security letters to obtain so-called business records (like credit card statements or phone records) without any court approval. Also, "pen register" laws allow the government to collect information like IP addresses or telephone numbers dialed, if the information likely to be obtained is relevant to national security or a criminal investigation.

"There are many, many other ways for the government to continue engaging in surveillance," Toomey said.

What about the "lone wolf" and "roving wiretap" provisions?

While Section 215 has received most of the attention in the past week, two other surveillance provisions expired. The "lone wolf" provision allowed the government to spy on non-U.S. persons, even if that individual has no established connection to a foreign power or entity like a terrorist group. The "roving wiretap" provision allowed the government to monitor an individual across a host of different communications devices, such as different cell phones, without having to specify which devices they'll be monitoring to a court.

White House spokesman Josh Earnest on Monday called these a "set of other noncontroversial authorities."

Earnest acknowledged that the "lone wolf" provision "has not been used previously." But, he said, "if it were needed today, [it] could not be used."

Both Kayyali and Toomey said the "lone wolf" and "roving wiretap" provisions were more controversial than Earnest let on.

"The claims that these provisions are necessary are belied by disclosures about how they've been used," Toomey said. While the "lone wolf" provision has never been used, the "roving wiretap" provision has been used only infrequently, according to the government.

Meanwhile, Toomey noted, the government has "never claimed they were pivotal to any information that they couldn't have obtained with other authorities they possess."