Legislation to divest the National Security Agency of its mass collection of US phone records has died. But when the next Congress convenes, the White House intends to revive it.

In its first comment since the USA Freedom Act failed by two votes to overcome a Senate filibuster, the White House signaled Wednesday it will pursue a new bill early next year that looks something like the defeated legislation.

“Going forward, we will work with Congress to formulate and pass legislation that strikes a similar balance” between security and privacy, said Ned Price, a National Security Council spokesman.

Price indicated the White House wanted to pass such a bill “urgently but carefully” ahead of “the impending June expiration of important national security tools”.

That expiration concerns Section 215 of the 2001 Patriot Act. The NSA claims that provision justifies its bulk US phone records collection, a legal assertion that is hotly contested, but its application is far broader. Section 215’s authorities for collecting business records has become a routine investigative tool for the FBI, and civil libertarians are united with NSA defenders in doubting that the GOP-led Congress will reauthorize it absent prior surveillance reforms.

A debate exists within civil libertarian circles about the value of holding out for an outright expiration of Section 215. Some favor expiration as a measure to both get rid of a bulk collection pretext and roll back an expansion of FBI powers. Others consider the expiration as leverage to re-up a bill that can constrain bulk collection while also winning other desired reforms, such as an adversarial process before the secret Fisa surveillance court and greater relaxations of the gag orders surrounding tech companies and telcos that receive surveillance demands.

Price praised the “broad range of constituencies” that backed the Freedom Act, “from civil libertarians, intelligence and law enforcement professionals, to prominent private sector voices”.



But civil libertarians and tech firms abandoned support for a House version of the bill that expanded the definition of what the government can collect – thanks largely to the input of the intelligence community’s top lawyer – based on fears that bulk collection would be repackaged and not ended.

The White House “strongly” supported both versions of the Freedom Act. Going forward, Price said he did not want to “proffer a judgment between the two versions”.



“We would support any legislation that ensures appropriate privacy and civil liberties protections, while preserving essential authorities that our intelligence and law enforcement professionals need,” Price said.

Amie Stepanovich, a lawyer for the digital rights firm Access and a prominent voice in the surveillance-reform debate, said that a new surveillance bill in 2015 would need to expand on the privacy and transparency provisions in the Senate version of the Freedom Act.

“As more time passes, the need for reform is only becoming more urgent. Access has supported USA Freedom and thinks it is a good place to start in the new Congress,” Stepanovich said.

“However, it is increasingly important that we move forward with reform that is also going to address many of the other invasive programs and authorities. We look forward to engaging with all stakeholders to protect privacy of all users against overly invasive surveillance.”

Passing a surveillance reform bill in the next Congress is far from assured. The Senate Republican leadership, soon to take up the majority, ardently objected to what had been a bipartisan Freedom Act by arguing that it was a gift to the Islamic State (Isis). While the expanded Republican House majority is ardently opposed to the White House, it is split on rolling back the NSA, particularly with Isis dominating the Washington agenda instead of Edward Snowden’s revelations about widespread surveillance.

But before the next Congress takes office in January, the Obama administration must decide whether to ask the Fisa Court for another 90 days’ worth of bulk collection of US phone data. The current court authorization expires on 11 December.

Price said the administration had not yet made a decision on another re-up. But throughout 2014, President Obama has sought the court’s blessing for ongoing phone records collection as what he has considered a stopgap until Congress passed a bill to divest the NSA of the practice.