The USA Freedom Act (S-2685) surveillance overhaul died before proceeding to Senate floor debate or the amendment process Tuesday night. A cloture vote fell short of the required 60, coming to 58-42 and mostly divided across party lines. Sen. Bill Nelson, Fla., was the only Democrat to vote against advancing the cloture motion. Sens. Ted Cruz, Texas; Dean Heller, Nev.; Mike Lee, Utah; and Lisa Murkowski, Alaska, were the four Republicans voting in favor of cloture. A companion measure, widely considered by privacy advocates to be watered down, had passed the House earlier this year. “Yesterday a bill that was bipartisan in nature and came out under the auspices of the chairman of the Judiciary Committee after years of consternation, debate and just worked by so many different people came to the floor,” Senate Majority Leader Harry Reid, D-Nev., said on the floor Wednesday. “That was blocked yesterday -- blocked from even having a hearing here in the Senate floor. That’s really wrong. … Shouldn’t we at least be able to debate the issue here on the floor?” Wednesday, Judiciary Committee Chairman Patrick Leahy, D-Vt., author of the provision, slammed “some of the worst fear-mongering I’ve heard in 40 years” on the floor. Senate Minority Leader Mitch McConnell, R-Ky., had urged senators to oppose the USA Freedom Act, saying it would increase U.S. vulnerability to terrorist groups. Sen. Rand Paul, R-Ky., a surveillance critic, voted against the measure and framed it as “renewal of the Patriot Act,” not doing enough to revamp surveillance law. Several supporters of the bill have issued statements saying they want to continue the overhaul efforts in the next Congress.

Communications Subcommittee members spoke up on net neutrality on the Senate floor Wednesday. “People are trying to send a message here,” said Sen. Roy Blunt, R-Mo., reflecting on the recent midterm elections that featured many GOP seat gains. “It’d be a good idea if the White House would get on receive and try to figure out what that message is and what is wrong with those policies the American people don’t like.” Voters are “concerned about the president’s recent overreach” on net neutrality “where even the chairman of the FCC, nominated by the president, confirmed by this Senate, even the chairman of the FCC says, no, I think the president’s headed in the wrong direction there and we need to do something different than that,” Blunt said. President Barack Obama recently backed Communications Act Title II reclassification of broadband, and FCC Chairman Tom Wheeler has not publicly disagreed with that proposal (see 1411190039). Wheeler is widely seen as having worked on a hybrid proposal, drawing on Title II and Section 706. Sen. Maria Cantwell, D-Wash., defended net neutrality. She called for strong rules to prevent blocking, throttling, paid prioritization deals and to promote transparency, for wired and wireless networks. She worries about ISPs “cutting backroom deals,” she said, flanked by a large sign displaying the words net neutrality. “We face a pivotal moment,” Cantwell said. “I’m calling on the FCC to take forceful action that adopts the strongest rules possible to provide maximum protection for consumers, maximum flexibility to promote the Internet economy.” She called net neutrality “one of the most important economic issues before us.”

The Senate Judiciary Committee postponed its hearing on sports blackout legislation for a second time. The hearing was initially scheduled for September and then rescheduled for Wednesday. The committee announced the second postponement Monday, without giving any indication of when it may now be rescheduled.

House members and Commerce Department officials criticized alleged abuse by some employees within the Patent and Trademark Office’s telework program and its hiring practices (see 1411100040), in a joint House Judiciary and Oversight committees hearing Tuesday. The PTO employees who allegedly abused the telework program already should’ve been fired, said House Appropriations Committee member Frank Wolf, R-Va., in prepared testimony. Wolf said he’s a “huge advocate” of telework programs, but that the PTO needs stronger enforcement policies for those programs. Commerce’s 2014 investigation uncovered that a PTO “senior official intervened in the hiring process to ensure that a nonselected candidate, who was the fiancé of a close relative of the official, was ultimately selected for a position as a trademark examiner,” said Todd Zinser, Commerce inspector general, in prepared remarks. Ninety-five percent of PTO paralegals who participated in the Patent Hoteling Program had “insufficient work assigned to them over a four-year period despite a significant and growing backlog of appeals,” he said. The PTO received four “whistleblower” complaints in 2012 alleging abuse of the telework program, said Margaret Focarino, PTO commissioner for patents, in prepared testimony. “The USPTO investigated the claims, immediately took action to address issues raised during the investigation, and subsequently submitted a report to the Department of Commerce Office of the Inspector General." That report posited eight recommendations to improve the telework program, said Focarino. “We began implementing these recommendations and taking other actions even before submitting the report.”

Frenzy over surveillance overhaul continued Tuesday ahead of evening consideration of the USA Freedom Act (S-2685). “We cannot afford to delay action on these reforms any longer, as the American people continue to demand stronger protections for their privacy,” said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., in a floor statement Tuesday. “Unfortunately, some would rather use scare tactics than legislate. Some would have us wait while American businesses continue to lose tens of billions of dollars in the international marketplace. Or we could even wait until we are facing down the expiration of [Patriot Act] Section 215 in a matter of months, thereby creating dangerous uncertainty and risk for the intelligence community.” Senate Minority Leader Mitch McConnell, R-Ky., took to the Senate floor to blast the bill. Amendments were widely expected amid much debate over the bill’s fate as lawmakers proceeded with cloture. Several major tech companies recently urged the Senate to pass the bill, sending a coalition letter.

Sen. Al Franken, D-Minn., asked Attorney General Eric Holder several questions about a recent report about the U.S. government collecting consumer cellphone information by attaching devices to airplanes to mimic cellphone towers. “What types of information (e.g., phone metadata, location, emails, files, and photos) are collected from phones?” Franken asked in the Tuesday letter. “What types of data are retained by the government using this program, both from phones of targets and innocent Americans? What is the effectiveness of this program? Please be specific about the number of fugitives who have been detained as a direct result of this technology.” Franken chairs the Judiciary Privacy Subcommittee.

​Sen. Claire McCaskill, D-Mo., stills sees a pay-TV industry billing practices hearing in the cards for this year, despite some doubts industry lobbyists have voiced in recent days. “We’re trying to pull it together right now,” McCaskill told us at the Capitol Tuesday. She is attempting to pull together a hearing for December now, she said. McCaskill is chairwoman of the Senate Commerce Consumer Protection Subcommittee, and Commerce Committee Chairman Jay Rockefeller, D-W.Va., said in September that McCaskill should chair such a hearing.

FirstNet Acting General Manager TJ Kennedy will testify Tuesday about the state of the network at the House Homeland Security Emergency Preparedness Subcommittee’s hearing on interoperable communications and progress since the Sept. 11, 2001, terrorist attacks. Other witnesses include Ronald Hewitt, director of the Homeland Security Department’s Office of Emergency Communications, and Mark Grubb, communications division director of the Delaware Department of Safety and Homeland Security. The hearing will take place at 10 a.m. in 311 Cannon. Subcommittee Chairwoman Susan Brooks, R-Ind., cited in a statement “much progress” since the 2001 attack but said “real and pressing challenges remain, as was evidenced after Hurricane Sandy” in 2012.

Sen. Ed Markey, D-Mass., fired off a letter to the Justice Department Friday inquiring about a Wall Street Journalreport published that day that said department officials have sought to intercept consumer cellphone data. That account said that the government has used devices on airplanes to resemble cellphone towers and collect people’s cellphone information. “While such data can serve as an important tool for law enforcement to detect and deter criminal or terrorist activity, the sweeping nature of this program and the likely collection of sensitive records belonging to innocent consumers raise a number of important questions about how the Department protects the privacy of Americans, particularly those with no connection to unlawful activities,” Markey told Attorney General Eric Holder in the letter. He asked several questions, such as when the program began operating and about the authorizing court orders, requesting responses by Dec. 8.

​Sen. Al Franken, D-Minn., rebuffed Sen. Ted Cruz, R-Texas, for attacking President Barack Obama’s net neutrality position in support of Communications Act Title II reclassification. Cruz had slammed Obama and called it “Obamacare for the Internet” last week (see 1411100033). Cruz is a member of the Communications Subcommittee, and Franken chairs the Judiciary Privacy Subcommittee. Cruz is “completely wrong and he just doesn’t understand what his issue is,” Franken said Sunday on CNN’s State of the Union. “We’ve had net neutrality the entire history of the Internet … this is about reclassifying something so it stays the same.” Franken said pricing happens by value. “The Internet service providers have gotten bigger -- they essentially have an oligopoly and they have been talking about a fast lane,” Franken said. Several of the large ISPs recently told Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., that they have no interest in paid prioritization deals to create such fast lanes (see 1410290053). Cruz dug in on his net neutrality concerns Monday, posting three YouTube videos about his concerns with Internet regulation (see here, here and here). One clip featured Franken’s remarks and a Cruz rebuttal. “What happens when government starts regulating a service as a public utility?” Cruz said, delivering remarks in Austin Friday, according to the video. “It calcifies everything, it freezes it in place.” In one video, Cruz walks along a stage holding a rotary phone. “This is regulated by Title II,” he said, pointing to the old black phone model. “This is not,” he added, holding up a smartphone. “We want a whole lot more of this and a whole lot less of this.”