NSA phone data collection could continue despite law’s expiration

Stan Ward

Stan Ward

November 21, 2014

We reported earlier this week on the defeat of a bill in the Senate aimed at reining in the NSA’s powers of surveillance. Some legislators supported the measure because it would end the abusive bulk-data collection practices of government agencies. Under its provisions, it would have allowed the telecom companies to be the retainers of the records, subject to release if appropriate court orders or warrants were presented.

Some lawmakers, fearing that the entire bill would be scrapped when the law (Section 215 of the Patriot Act) expired or sunsetted on June 1, voted against the bill, and even though the bill was defeated, privacy advocates took solace that the law would just go away this summer. Turns out they may be wrong.

A little known provision of the Patriot Act, often overlooked, might give President Obama a possible way to keep the NSA’s bulk phone records program operational beyond the expiration deadline-possibly indefinitely. The President could, under certain provisions of the law, ask the Foreign Intelligence Surveillance Court (Fisa court) to sustain it.

Given this possibility, the matter may have to be viewed in a different light by the new, Republican controlled, Senate. It makes the passage of this USA Freedom Act more imperative if there is the likelihood that NSA abuses could live on past the expiration date.

It’s hard to read what the thinking of the White House is – Obama has waffled on the topic. He has had the political cover of presiding over a law not created during his presidency, but, at the same time, embracing government spying tactics. In a January speech, he praised the program’s abilities as necessary and valuable but also sympathized with critics of the practice because it allowed the government to collect data on private citizens.

While he claimed to support a balanced approach to the subject, it is unclear what he would do if faced with the clear choice of letting the program expire and losing its capabilities or allow it to continue to function over an obscure provision in the law.

Politics, as usual, will play the pivotal role in the situation. The senate Republicans would relish the idea of holding Obama accountable for allowing the program to lapse, while at the same time castigating him for allowing continued government abuse of privacy.

The provision in question involves ongoing investigations – that is, investigations which commenced prior to the June 1 sunset date. Section 215 will expire“on June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

Thus, as long as there was an older counterterrorism investigation still open, the FISA Court could keep issuing Section 215 orders to phone companies indefinitely for that investigation. The phrase, “any particular offense … that occurred before June 2015” is particular worrisome to privacy advocates as it is so open-ended as to make the laws life indefinite.

Jameel Jaffer, a lawyer at the American Civil Liberties Union (ACLU), which has brought one of several lawsuits against the government challenging the program, said it would be “perverse” to interpret the exception as permitting the government “to bootstrap itself into permanent Section 215 authority.” His argument is that by giving the government the authority to continue investigations begun prior to June 1, 2015 would defeat the purpose of giving the provision an expiration date.

The telecom companies, for their part, have been largely silent on the issue, though they view the Senate’s refusal to take up the bill as a disappointment. Privately, they relished the possibility of retaining phone records subject to law enforcement subpoena. In the past they have campaigned for greater latitude to disclose information to customers about surveillance orders they receive. They have yet to weigh in on the prospects of the law continuing after the sunset date.

For now, especially during the lame-duck session of congress, the matter has been laid to rest. The new congress will get another crack at it beginning January, and it will be interesting to see how it proceeds against a wounded and embattled president and how he responds come June 1.

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