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Sunsetting of Patriot Act will not draw curtain on mass surveillance

Experts say the expiration of Section 215 only slightly trims NSA surveillance authority

The NSA’s surveillance and data collection powers remained alive and well Monday despite the “largely symbolic” sunsetting of three Patriot Act provisions under which the agency had extended its reach, experts warned.

The measures expired after Sen. Rand Paul, R-Ky., on Sunday blocked an attempt to speedily pass an extension before the midnight deadline.

His move affects one of the Patriot Act’s most contested passages, Section 215, which formed the basis for the National Security Agency’s bulk record collection program. A measure providing for the surveillance of unaffiliated lone-wolf suspects also expired, as did a provision allowing the NSA to conduct roving wiretaps, across multiple devices using the same court order.

Privacy activists supported the sunsetting of the three provisions, with ACLU legal director Jameel Jaffer describing the expiration of Section 215 as “a sensible first step towards broader reform of the surveillance laws.” But applause for Sunday’s victory has been relatively muted by recognition that much of the NSA’s surveillance program remains intact, aside from a temporary lapse in some of the formal authorizations.

“The sunset of a few weeks or even a month is not going to make an operational difference, really,” said Julian Sanchez, a senior fellow at the libertarian-leaning Cato Institute.

How exactly did we end up with the biggest domestic spying apparatus in U.S. history?

The federal government still has a range of instruments for obtaining phone and electronic records, including but not limited to Foreign Intelligence Surveillance Act (FISA) court warrants and national security letters.

The FISA court conducts its proceedings in secret and tends to rule in favor of the intelligence community. The court reportedly approves 99 percent of the warrant requests it receives, although in 2013 FISA judge Reggie Walton defended the court to the Senate by saying it demanded “substantive changes” to about a quarter of requests.

As for bulk data collection, the NSA started winding that program down in late May, anticipating that Congress might not renew Section 215 authorization in time for the June 1 deadline.

“The bulk call record program, at least as it functions under Section 215, looks like it’s been temporarily halted,” ACLU legislative counsel Neema Singh Guliani told Al Jazeera.

Independent studies of bulk collection have cast doubt on its effectiveness as a counterterrorism strategy, as opposed to the more targeted intelligence gathering that is still authorized.

As a result, said Sanchez, the expiration of Section 215 and the other two provisions is “largely symbolic.” In prior years, the White House was able to assure Patriot Act reauthorization by waiting until shortly before expiration deadlines, then urging speedy renewal to avoid compromising national security.

The fact that Paul and others refused to allow expedited passage despite the tight deadline shows “the brinksmanship and the scaremongering that worked for 14 years have largely stopped working,” said Sanchez.

In lieu of a straight Section 215 reauthorization, Congress is likely to pass some version of the USA Freedom Act, which would replace bulk data collection with a system under which the NSA must request call records from the telecom companies that hold them. The act would also eliminate national security letters, which the FBI can use to gather private data on consumers in secret and without court approval.

Surveillance that was launched under the now-defunct passages can even continue, thanks to a grandfather clause in the Patriot Act, which allows the federal government to proceed with its spying if it was authorized under expired provisions.

American University Washington College of Law professor Stephen Vladeck said the government could argue that the grandfather clause goes even further than that.

“The government might also argue they could get a new authorization as long as the investigation was ongoing,” said Vladeck. And because investigations can be broadly defined, “the government could at least try to backdoor through the grandfather clause most of what the front door now precludes.”

But Vladeck described the grandfather clause as “a bit of a red herring,” given the likely passage of the USA Freedom Act.

“If it didn't look like the Senate was going to pass USA Freedom in the next three days, I think it would be more of a big deal,” he said.

The ACLU has declined to support or oppose the USA Freedom Act, calling it an improvement on the Patriot Act but still dangerously broad in the power it allocates to the NSA.

“It’s not as bad as saying to the phone companies, ‘Give me everything and everyone,’ but it is sufficiently broad for them to collect hundreds of records at a time,” said Singh Guliani.

Whether the USA Freedom Act will reach the president’s desk in its present form remains to be seen. Senate Majority Leader Mitch McConnell, R-Ky., who initially supported a straight extension of the Patriot Act language, has proposed several amendments to the House version of the bill. The ACLU is urging changes of its own to narrow the scope of the law.

Whichever side wins the push and pull over the USA Freedom Act, the passage of that legislation will not end the political struggle over NSA spying. Mass surveillance will likely continue, as will the fight over its scope. The death of Section 215 brings to a close just one act in a much longer drama.

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