WASHINGTON — The Senate struggled to reach agreement Friday on how to change the way the National Security Agency handles American calling records, setting the stage for a halt to the collection program and two less-controversial surveillance programs designed to track spies and terrorists.
With the House already gone for a 10-day Memorial Day break, the Senate had yet to begin debate Friday on a House bill that would end NSA's bulk collection of domestic phone records. Known as the USA Freedom Act, the bill would authorize case-by-case searches of records held by phone companies instead of the government, and it would extend two other expiring surveillance provisions used frequently by the FBI.
The legal provisions authorizing the programs will expire at midnight May 31, and officials say they will lose valuable surveillance tools if the Senate fails to go along with the House. But key Republican senators oppose the House approach.
What will happen to the surveillance programs if Congress doesn't pass a bill on Friday:
IF THE LAW EXPIRES
At issue is a section of the Patriot Act, Section 215, used by the government to justify secretly collecting the "to and from" information about nearly every American landline telephone call. For technical and bureaucratic reasons, the program was not collecting a large chunk of mobile calling records, which made it less effective as fewer people continued to use landlines.
When former NSA contractor Edward Snowden revealed the program in 2013, many Americans were outraged that NSA had their calling records. President Barack Obama ultimately announced a plan similar to the USA Freedom Act and asked Congress to pass it. He said the plan would preserve the NSA's ability to hunt for domestic connections to international plots without having an intelligence agency hold millions of Americans' private records.
Since it gave the government extraordinary powers, Section 215 of the Patriot Act was designed to expire at midnight on May 31 unless Congress renews it.
Under the USA Freedom Act, the government would transition over six months to a system under which it queries the phone companies with known terrorists' numbers to get back a list of numbers that had been in touch with a terrorist number.
But if Section 215 expires without replacement, the government would lack the blanket authority to conduct those searches. There would be legal methods to hunt for connections in U.S. phone records to terrorists, said current and former U.S. officials who spoke on condition of anonymity because they were not authorized to discuss the matter publicly. But those methods would not be applicable in every case.
The Justice Department has said the NSA would begin winding down its collection of domestic calling records this week if the Senate fails to act because the collection takes time to halt.
WHAT ABOUT THE OTHER PARTS OF THE LAW?
Far less attention has been paid to two other surveillance authorities that expire at midnight May 31. One makes it easier for the FBI to track "lone wolf" terrorism suspects who have no connection to a foreign power, and another allows the government to eavesdrop on suspects who continuously discard their cellphones in an effort to avoid surveillance.
They have been used frequently, and there is no meaningful opposition to them in Congress.
If those were to go away, FBI Director James Comey said, it would set back the bureau at a time when domestic threats are on the rise.
The so-called "roving wiretap" provision allows the FBI to get a warrant to target the communications of a person rather than a device, to account for a suspect who frequently discards "burner" phones. The lone wolf provision allows the government to use national security authorities to track a terror suspect even if he or she has no obvious connection to a foreign power.
Briefing reporters Friday, White House spokesman Josh Earnest urged the Senate to act. "The way to eliminate the risk of these critically important national security authorities from lapsing is to pass the USA Freedom Act," he said.
The president and his top law enforcement officials have urged the Senate to pass the House bill, as have Democrats and Republicans in the House. But key Senate Republicans are balking.
Sen. Richard Burr, chairman of the Senate Intelligence Committee, has floated a plan that would essentially dare the House to let the law expire.
Burr predicted the House's bill, the USA Freedom Act, would fail to get enough support to reach a vote in the Senate. And he said he envisions the same fate for an effort by Senate leaders to extend the law for another two months
As a compromise, Burr wants to extend current law between 5 days and a month to give the House time to pass the Senate bill. Then he would have the NSA transition to the system envisioned by the USA Freedom Act. But he would allow the transition to take less time — two years, not six months.
The Senate would then depart, leaving it up to the House to take or leave the Senate proposal when House members return June 1. But House members have said they would not go along with an extension. So the Senate's move could mean at least a temporary expiration of the law and of the surveillance programs.
"The Senate is not going to be jammed by the House, and the House is not going to let the program go dark," said Sen. John Cornyn, Republican of Texas.