Even If Congress Lets Section 215 Expire, The NSA May Be Able To Keep On Collecting Phone Metadata
from the your-expired-laws-have-no-power-here dept
The NSA’s bulk phone metadata program is unstoppable. Despite being called out by legislators and the administration’s civil liberties oversight board as unconstitutional and illegal — and despite being targeted by several of the administration’s surveillance reforms — it continues uninterrupted and largely unchanged.
Legislators who watched their Section 215-targeting bills die on the Congressional floor are now watching the clock. This part of the PATRIOT Act is set to expire June 1st (as is the latest bulk metadata order) and if Congress doesn’t act to renew it, the program will grind to a halt. Or so you would think. But the FISA judge James Boasberg doesn’t see why this provision’s sunset should have any negative effect on the continued collection of phone metadata.
On the last page of the court’s most recent order, Boasberg says the following:
If Congress, conversely, has not enacted legislation amending § 1861 or extending its sunset date established by Section 102(b) of Public Law 109-177, 120 Stat. 195, as most recently amended by Section 2(a) of Public Law 112-14, 125 Stat. 216, the government is directed to provide a legal memorandum pursuant to Rule 11(d) addressing the power of the Court to grant such authority beyond June 1, 2015.
It’s Public Law 109-177 that’s aiding the effortless reauthorization. Charlie Savage of the New York Times noted this possibility last year. There’s an exception in place that allows authorized surveillance programs to continue even after their authorizations have lapsed.
(2) Exception.–With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.
This could provide for endless bulk surveillance under Section 215, even without renewal of the program. Or it could just be the FISA judge signaling conversations the general public isn’t privy to, as Marcy Wheeler points out.
That basically says the Court is aware of this discussion, either because it reads the NYT or because the government has mentioned it. This order doesn’t tip a hand on how FISC would regard this claim, but it does make clear it considers it a distinct possibility.
Note, unless I’m missing something, no language like this appears in any of the unredacted sections of previous dragnet orders, not even when Congress was giving the government straight renewals. We can’t be sure, but that certainly seems to suggest the Court has been having conversations — either by itself or with the government — about alternatives in a way Bob Litt and others are not having publicly.
Even if the court chooses to read the PATRIOT Act as killing Section 215 when it sunsets, this likely won’t end the collection of phone metadata. The government still has other options.
Many privacy advocates believe the White House would have two routes available if it chose to continue the program, absent congressional action. Along with potentially being able to continue investigations that are ongoing despite an expiration, the administration could also rely on a “pen/trap” statute, which allows for phone tapping and has a loose standard of relevancy, akin to Section 215, and typically does not require probable cause.
This option would require a bit more paperwork and slightly refined targeting of court-approved numbers. It would, at least temporarily, halt the incoming collection of everything and force the NSA to relinquish control of the database. A PR/TT order wouldn’t allow for collection in bulk, but rather return records linked to certain numbers from telcos searching their own databases. So, it would be a step forward in terms of Section 215 reform (moving the database out of the NSA’s control), however inadvertently.
Others believe the language in the latest FISA order signifies nothing in particular.
Stewart Baker, a former general counsel at the NSA, said it’s possible the surveillance court could use the leeway to grant a “one-off measure” in May to keep the bulk-records program going only through June. He noted that Boasberg’s order requests that a memorandum from the government be filed not by June 1 but by May 22, a notable deadline, given that “most observers expect that Congress will only act at the last minute.”
“The much harder question is whether it could issue any orders in June,” Baker said. “There’s an argument that it can, but I suspect that the administration won’t be willing to make that argument.”
Section 215 might expire, but the door is open for the NSA to continue its collecting uninterrupted. Things may become much more interesting in late May as the clock winds down. Perhaps Congress will have the courage to just let this section of the PATRIOT Act die, but it will have to weather plenty of “terrorists… terrorists everywhere!” posturing from Section 215’s defenderss. If nothing else, an expiration would force the reforms the NSA has shown little interest in implementing.