N.S.A. Phone Data Collection Could Go On, Even if a Law Expires


November 20, 2014

WASHINGTON — A little-known provision of the Patriot Act, overlooked by lawmakers and administration officials alike, appears to give President Obama a possible way to keep the National Security Agency’s bulk phone records program going indefinitely — even if Congress allows the law on which it is based to expire next year.

November 20, 2014

WASHINGTON — A little-known provision of the Patriot Act, overlooked by lawmakers and administration officials alike, appears to give President Obama a possible way to keep the National Security Agency’s bulk phone records program going indefinitely — even if Congress allows the law on which it is based to expire next year.

Senator Dianne Feinstein of California said the bulk phone records program was at risk.

Senate Republicans on Tuesday night used a filibuster to block consideration of a bill to end and replace the N.S.A. phone records program. The debate about what may happen next has played out based on a widely held premise: that the legal basis for the program, Section 215 of the Patriot Act, will expire on June 1, so if Congress remains gridlocked, the program will automatically shut down.

“I believe that if we do not pass this bill, the metadata program is at risk because the 215 program sunsets next year,” Senator Dianne Feinstein, Democrat of California, said in Tuesday night’s debate. But that premise may be incorrect. If the summer arrives and the program is facing a shutdown, Mr. Obama could invoke the provision to ask the Foreign Intelligence Surveillance Court to keep it going.

Several executive branch officials said the administration had not been studying that option and expressed doubt that Mr. Obama would take such a step, or that the Surveillance Court would agree to it if he tried. Still, the mere existence of a potential way for the program to keep going without congressional action could recast the debate.

Among other things, it could dampen any sense of solace felt by privacy advocates who supported the bill, the U.S.A. Freedom Act, and its revisions of the bulk data program, but who believed that if Congress remained gridlocked, the program would disappear entirely.

And it potentially transforms the politics of what could happen if the expiration date is reached without new legislation, giving congressional Republicans a way to try to shift the blame for any risk created by letting the program lapse to Mr. Obama, if the president does not use the provision to try to keep it going. Specifically, the law says that Section 215, along with another section of the Patriot Act, expires 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.”

Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

The exception is obscure because it was recorded as a note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.

Jameel Jaffer, a lawyer at the American Civil Liberties Union, 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.” He argued that Congress did not intend for the concept of “investigation” to mean an all-encompassing, unending investigation into Al Qaeda, because that would defeat the purpose of giving the provision an expiration date.

Still, the F.B.I. has numerous open counterterrorism investigations. Officials have suggested that those include not just regular cases on particular suspects, but open-ended “enterprise” investigations targeting entire organizations deemed to pose a serious threat to the public, like Al Qaeda, for wide-ranging examinations that continue for years.

Mr. Davidson said he was recently reminded of the exception while researching the Patriot Act for a friend-of-the court brief for another lawsuit challenging the constitutionality of the program. He is not a proponent of the program; the brief he co-wrote, on behalf of the Center for National Security Studies, argued that Section 215 cannot be legitimately interpreted as authorizing bulk phone-data collection.

The White House press office said the administration would study the provision and was not ready to comment about it, but provided a statement expressing disappointment that the bill had failed and repeated the premise that the program faces expiration. “Going forward, we will work with Congress to formulate and pass legislation that strikes a similar balance,” the statement said. “We recognize the importance of doing so urgently — but carefully — given the impending June expiration of important national security tools.”

Mr. Obama’s views on the N.S.A. phone records program are ambiguous. In a January speech, he extolled the program’s abilities as necessary and valuable, but also said he agreed with critics that it risked abuse to let the government collect and store records of everyone’s phone calls. He embraced what became the U.S.A. Freedom Act — under which the bulk records would stay with the phone companies, and a new kind of court order would permit the government to swiftly collect only those linked, up to two callers away, to specific suspects — as a way to solve the problem without losing the ability to analyze links between callers in the hunt for terrorists.

“I believe we need a new approach,” he said. “I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.”

But Mr. Obama’s stance left unclear what he would do if faced with a different choice, between permitting the government to keep holding the bulk records or losing the program’s abilities.

The Senate’s refusal to take up the bill also disappointed a coalition of technology companies that supported a provision that would have given them greater latitude to disclose information about surveillance orders they receive. In a statement on Wednesday, they said they would continue to work for “meaningful reforms” in Congress.

Courtesy: NY Times