FISA: 215 Collection

A Sunset of Section 215 Is Increasingly Likely - And May Prompt Overhaul

By Harley Geiger
Tuesday, May 19, 2015, 3:12 PM

Senator Richard Burr, Chairman of the Senate Select Committee on Intelligence, recently made comments to press suggesting that he believed the sunset for Section 215 of the PATRIOT Act will occur sometime during June 1, 2015, and that this was no big deal. Senator Burr told MSNBC:

Everybody needs to realize that this act expires on June 1st, the House is back in session on June 1st, so it’s not like they’re going to jam us on Thursday, leave town and make us believe that we can’t send them something else. We can.

But a strongly worded joint statement from House Judiciary Chairman Goodlatte and Ranking Member Conyers indicated that even a short sunset would indeed be a big deal: "If the Senate chooses to allow these authorities to expire, they should do so knowing that sunset may be permanent."

If the Senate passes a short-term extension of Sec. 215 or anything other than the USA FREEDOM Act – which cleared the House in a landslide – the House will have to approve the new package. Yet the sunset of Sec. 215 will actually occur before the House of Representatives is scheduled to vote again. A sunset, even a very short one, may dramatically change the debate on surveillance reform. No longer would members of Congress be voting on the extension or reform of a current law, they would then be forced to vote to re-instate a defunct law that codifies an unpopular and unnecessary surveillance practice.

Sunset is likely if Senate doesn’t pass USA FREEDOM

The law (50 USC 1861 note) states that the Sec. 215 sunset occurs June 1st – so once the clock rolls over from 11:59:59PM on May 31st, Sec. 215 expires and is no longer law. The House is scheduled to return from recess and vote no earlier than 6:30PM on June1st. By the time the House can vote on whatever the Senate passes, Sec. 215 will have sunset 18.5 hours prior and will have been removed from existing law.

Maybe the House votes to re-instate Sec. 215 on the evening of June 1st, or the next day, or even the following week. Operationally, that scenario probably won’t make a major difference to the intelligence community. As has been noted elsewhere, the government can likely continue to use the pre-sunset Sec. 215 for investigations opened before June 1st, though not for new investigations.

However, Senators may be too dismissive of the political effect of sunset. If Sec. 215 sunsets before the House votes, the House faces a very different choice than merely extending the sunset dates of an existing law. Instead, for the first time since the PATRIOT Act, the House would be voting to change the law, and to put Sec. 215 on the books. It would be akin to a new vote to enact PATRIOT Act authorities – something two-thirds of the House Members have never done. This vote should give many Members reason to pause.

A post-sunset vote would significantly expand surveillance

After 11:59PM on May 31st, Sec. 215 reverts to its pre-PATRIOT state, which is the authority granted under the Foreign Intelligence Surveillance Act of 1978 (as amended). A vote after June 1 would mean Congress is actually expanding the existing law to Sec. 215’s post-PATRIOT state. This would be a significant expansion. Prior to the PATRIOT Act, the government could obtain records from a narrow class of entities (like travel-related companies), and only if they pertain to foreign powers or agents of foreign powers – who were usually not Americans. Post-sunset, Congress would be re-creating the authority for the government to obtain, with minimal requirements for judicial authorization, “any tangible thing” about any person, including Americans, regardless of their connection to a crime or terrorism. Here’s what the difference would look like:

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A few hours’ sunset may not make much difference to beltway insiders, but a post-sunset vote re-instating Sec. 215 can correctly be seen by voters as a huge expansion in government surveillance power after that power had gone dormant. And if the choice is between enacting a new PATRIOT Act or a reform proposal, public opinion is clear: The vast majority of Americans want reform, not a re-creation of the status quo.

Faced with a vote like that, why is it assumed that House Members of the 114th Congress might not take the opportunity to remake Sec. 215 in its own image?

The USA FREEDOM Act aims to end bulk collection without any significant expansion of surveillance authorities, which is why CDT supports the bill. However, a sunset might kick start a complete overhaul of Sec. 215 – and who knows how long that process would take or what the outcome would be. For civil libertarians, the chance to reform Sec. 215 wholesale beyond the USA FREEDOM Act would be welcome.

If the goal of Senator Burr and the Senate Majority Leader is to preserve the status quo, then they may be taking a big risk by allowing Sec. 215 to sunset before the House votes on June 1st. The USA FREEDOM Act – as written – provides the Senate with the clearest path forward to protect both privacy and security and provide the clarity the intelligence community and civil libertarians seek.

Harley Geiger is Advocacy Director and Senior Counsel at the Center for Democracy & Technology (CDT). He works on issues related to civil liberties and government surveillance, computer crime, and cybersecurity. From 2012-2014, Harley served as Senior Legislative Counsel for U.S. Representative Zoe Lofgren of California. There he was the lead staffer for technology and Internet issues, and was instrumental in helping develop Rep. Lofgren’s Internet freedom agenda, including legislation to reform the Foreign Intelligence Surveillance Act, ECPA, the Computer Fraud and Abuse Act, and copyright laws. Harley worked at CDT from 2008-2012 as Staff Attorney and Senior Policy Counsel, focusing on surveillance, consumer privacy, health information technology, and data security.

This post was updated on May 20, to reflect the issuance of the House Judiciary Committee's joint statement and its impact on the legislative debate over Section 215.