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

Tue, Mar 24th 2015 9:31am — Tim Cushing

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.

150226 Section 215 Order (PDF)150226 Section 215 Order (Text)

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Filed Under: fisa court, nsa, patriot act, section 215, surveillance

13 Comments

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Anonymous Coward, 24 Mar 2015 @ 9:35am

I don't think they will stop under any circumstance, it might be called different things or run by someone else but it will stay unless there is a revolution.
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Anonymous Coward, 24 Mar 2015 @ 9:57am

Intent of Congress
The courts often are asked to make assumptions regarding the intent of congress. I think by letting this sunset, it would speak loudly regarding congress's feelings regarding bulk collection.
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Anonymous Coward, 24 Mar 2015 @ 10:06am

I wonder what the betting pools say about a 'terrorist attack' in may?
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Anonymous Coward, 24 Mar 2015 @ 10:46am

Those people who seek power also only seek and accept increases in their power, and never any reductions. This is the ratchet that eventually destroys governments and nations, when it leads to the people taking action.
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Padpaw (profile), 24 Mar 2015 @ 12:31pm

taking into account the NSA have already shown they have no intention of following the laws already in place why would you expect them to follow any law that contradicts their criminal enterprise?
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- John Fenderson (profile), 24 Mar 2015 @ 12:51pm
  
  Re:
  I had this thought as well. But even though this is true (and I think it is) there's still value in making the behavior unambiguously illegal. It opens the possibility for some kind of recourse when the law is broken.
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  - beltorak (profile), 24 Mar 2015 @ 2:12pm
    
    Re: Re:
    I don't think so. Right now we know it's "legal" under section 215, but if that sunsets and they keep doing it, we still won't know it's on going, and we will be back in the dark about what authority they will be claiming it's legal under. Repeat claims of "we don't collect blah blah blah under this program".
    
    Does it show that I have abundance of distrust?
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    - John Fenderson (profile), 24 Mar 2015 @ 3:14pm
      
      Re: Re: Re:
      I agree, and I think that my level of trust is roughly the same as yours. Nonetheless, making it so that the agencies are actually breaking the law when they do this stuff is an improvement. A tiny, tiny improvement perhaps, and one the on its own means little, but a flood won't start without the first raindrop.
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Anonymous Coward, 24 Mar 2015 @ 1:40pm

Are there still branches to our government or did a limb get chopped?
Section 215 is what gets trotted out to justify the unconstitutional collection; if that continues after a literal act of Congress deauthorizes it—enabled by some "legal" memorandum by a "judge" in the FISA "court"—that's proof that there's been a coup in our government and that we've lost one or more branches along with any expectation of representation.
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Anonymous Coward, 24 Mar 2015 @ 7:05pm

There are actual terrorists after me. AUMF 2001 can implement it all without the patriot act. Sometimes these things really are used to avoid murder and rape from abroad.
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orbitalinsertion (profile), 24 Mar 2015 @ 7:38pm

Perhaps Congress will have the courage to just let this section of the PATRIOT Act die

But they will never display the courage to kill it right there and mount it's filthy head on a pike in the National Mall as a warning to themselves and future governments.
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CanadianByChoice (profile), 24 Mar 2015 @ 8:16pm

They aren't going to stop. Period.
It really doesn't matter what congress says or what the courts say - they're data junkys and they aren't going to stop. Ever. They'll just take steps to ensure they have "plausable deniability".
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John Thacker, 25 Mar 2015 @ 7:39am

Interestingly, reclassification of ISP service under Title II may mean that NSA surveillance of data will persist even if the FISA Amendments Act sunsets. "Common carriers" are subject to extra surveillance requirements; reclassification of ISP service as not "common carriers" resulted in the FISC ruling some the NSA spying under Bush as illegal. (This then resulted in the FISA Amendments Act, since the NSA doesn't like to lose capabilities.)
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