At the stroke of midnight on Sunday, three government surveillance powers originally granted by the Patriot Act after 9/11 will expire — including the National Security Agency’s indiscriminate collection of domestic phone records, revealed nearly two years ago by whistleblower Edward Snowden.
Specifically, a Patriot Act “sunset” would finally close the book on Section 215, the much-debated provision that the government has used to justify secretly collecting virtually all Americans’ phone records, which reveal who you’ve been calling, how often and for how long. That means as long as Congress does nothing, it will have bumbled its way into the most significant government surveillance rollback in decades. But it would be only the beginning of a very long road ahead.
With the bipartisan USA Freedom Act stalled in the Senate, a sunset is now the only way Congress can guarantee an end to mass surveillance under Section 215. While the Freedom Act would provide more oversight and end the bulk collection of phone records, it still lacks key provisions removed from the original draft that would end mass surveillance of Americans uniformly across other programs, not just phone records. So far, none of these protections has even been up for debate because the surveillance fight in Washington has been narrowly framed around the phone records dragnet — only the very tip of the NSA iceberg.
The 215 program — which compels phone companies to surrender records on an “ongoing daily basis” through a secret intelligence tribunal known as the FISA court — was the first and arguably most scandalous of the Snowden revelations. The ensuing debate in Congress has centered almost exclusively on whether or not this particular form of mass surveillance should be stopped. Any discussion of reforming other mass surveillance authorities — such as Executive Order 12333 and Section 702 of the FISA Amendments Act, both of which allow bulk collection of both the content and metadata of Americans’ communications — has been shut down or ignored.
Even under Section 215 alone, we still know very little about what data is being collected. The FISA court issued 180 orders under the statute last year, but only 5 of those orders involved the NSA’s massive phone-records dragnet. A heavily redacted report (PDF) released last week by the Department of Justice’s Inspector General similarly suggests that many more types of information are being collected in bulk under 215 that Congress has overlooked, including “email transactional records.”
Excluding these kinds of collection programs from a debate on mass surveillance is especially disingenuous in 2015. The amount of time Americans spend making phone calls is plummeting compared to texting, sending emails, using smartphone messaging apps and video chatting over services such as Skype. Even the NSA candidly admits that phone records are small potatoes: Six anonymous senior intelligence officials recently told The Daily Beast that ending the collection program by passing the Freedom Act would leave intelligence agencies virtually unscathed. One called it “a big win for the NSA, and a huge nothingburger for the privacy community.”
As expected, surveillance defenders in President Barack Obama’s administration have been waxing apocalyptic about the consequences of letting the Patriot Act provisions expire, warning anonymously in the New York Times that it would be akin to “playing national-security Russian roulette” in a time of (as usual, unspecified) “mounting terrorist threats.” But there is no evidence that a Patriot Act sunset would take away any intelligence capabilities at all.
In fact, according to the recently released DOJ Inspector General’s report, Section 215 as a whole has never been essential in any investigations. And even if 215 expires, the NSA and the Federal Bureau of Investigation will still be able to conduct targeted surveillance using a wide variety of other tools such as National Security Letters, controversial surveillance orders that force Internet service providers to surrender data and gag them from alerting customers. The sunset provision also allows the agencies to keep records that are being used in existing investigations.
Thanks to the coordinated filibustering of Sens. Ron Wyden and Rand Paul, a clean reauthorization of the Patriot Act is now off the table. But if the Senate were to pass the House’s USA Freedom Act as-is, the past two years of reform efforts may very well end with a whimper. Reformers would be stuck with a watered-down bill that only stops the NSA from using one law to collect one type of data under one program that was never authorized in the first place.
For now, we can do better by doing nothing. If Congress lets Section 215 sunset, the NSA will have to stop all forms of mass surveillance under the statute. Plus, it would clear the way for debate of a new and improved USA Freedom Act — one that doesn’t use all its bargaining chips to end a program that has never stopped a single terrorist plot and that a U.S. appeals court has declared illegal.
But following through on that second part will be crucial: Without new legislation on the books mandating more transparency and oversight of the FISA court, there’s no guarantee the NSA won’t simply continue its mass surveillance under another secret interpretation of a different law.
A sunset can be beautiful, but it’s not a victory in itself. Congress should sit back and enjoy this one, but it must be ready to start out at dawn on the road to real reform.