As lawmakers in D.C. flipped over their calendars from May to June last night, the sun set — at least temporarily — on the National Security Agency’s ability to collect mass amounts of information from telephone companies about their customers’ calls.
Section 215 of the USA PATRIOT Act amended three sections of the Foreign Intelligence Surveillance Act to explain how the government can compel companies to hand over information with regard to intelligence investigations.
The law is deliberately vague on what can be collected, saying the government can require the “production of any tangible things (including books, records, papers, documents, and other items),” but the NSA has used its Sec. 215 authority mostly for collection of telephone metadata — non-content information like phone numbers, duration of calls, identities of those involved in call — from telecom providers.
This section, along with several others, were set to expire at the end of 2005, but has been reauthorized repeatedly in the years since.
Congress could have let Sec. 215 die a quiet death by simply doing nothing and allowing it to sunset on June 1. But in the weeks leading up to the expiration date, the House introduced and passed, on May 13, the USA FREEDOM Act, intended to replace the PATRIOT Act.
The legislation would end the bulk data collection allowed under Sec. 215, and increase transparency with regard to FISA court decisions.
At the same time, the FREEDOM Act would create a new call detail records program overseen by the FISA court, which means records would still be collected.
The bill would also create a “strictly limited emergency authority” under which the emergency use of Section 215 would still be authorized. The only difference is that the government would be required to destroy the collected information after the fact if a FISA court denies the application.
The initial attempt, a week ago, to get a senate vote on the FREEDOM Act failed when proponents of the bill could not muster the 60 yeas needed for cloture. With Senate Majority Leader Mitch McConnell also unable to push through an as-is extension of the PATRIOT Act provisions, and with the May 31 deadline looming, the senators gathered again on Sunday to take another cloture vote. This time, the vote was 77-17 in favor of moving forward with consideration of the bill.
That doesn’t mean that all 77 of those senators are going to vote for the FREEDOM Act. It just puts an end to any attempt to filibuster the legislation. However, given the support for the bill in both the House of Representatives — where it passed 338-88 — and the White House, it now seems likely that the senate will soon sign off on the FREEDOM Act.
The current version of the bill includes a six-month transition period during which phone companies would be required to update their systems to allow individual, court-ordered queries for records of terror suspects. That transition could last even longer, possibly up to a year, if senators approves proposed amendments to the legislation. Any changes to the bill could result in further delay, which could erode its support and momentum.
In anticipation of the lapse in its surveillance authority, the NSA reportedly began shutting it down late last week.
“We’ve said for the past several days that the wind-down process would need to begin yesterday if there was no legislative agreement,” an administration official told the National Journal. “That process has begun.”
Earlier this spring a federal appeals court ruled that the NSA bulk collection program was in violation of the law because the agency was gathering massive amounts of potentially sensitive information without proper judicial review.
“The more metadata the government collects and analyzes… the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals,” reads the ruling, which clarifies that Sec. 215 does “not preclude judicial review, and that the bulk telephone metadata program is not authorized” by the law.
This decision overturned a 2013 ruling in the same case, in which the judge explained that the “blunt tool only works because it collects everything,” while cautioning that, “Such a program, if unchecked, imperils the civil liberties of every citizen.”
