With the Senate continuing its dangerous brinksmanship regarding the imminent expiration of three Patriot Act provisions, opponents of NSA bulk data collection seem poised to celebrate whatever happens. McConnell’s efforts to extend the Patriot Act unchanged lack enough support to pass either chamber. A last-minute deal to pass the USA Freedom Act may be in the works, but would still face a number of procedural and political hurdles. It is likely there will be at least some lapse of three sections of the Patriot Act, including section 215, the business records provision that supports the NSA’s bulk collection of telephone records.
The assumption has been that the expiration of section 215 of the Patriot Act would mean the end of bulk data collection. That assumption is wrong. Only passing the USA Freedom Act will do that.
Even if section 215 expires, the NSA could resume bulk metadata collection with a little legal work from Justice Department and Intelligence Community lawyers. It is true that the Foreign Intelligence Surveillance Court’s interpretation of section 215 has provided the authority for NSA’s current program of bulk phone records collection as business records under the Foreign Intelligence Surveillance Act (FISA). However, as careful readers of Lawfare know, the NSA’s bulk telephone metadata program under section 215 is not the only, nor was it the first, bulk collection of metadata authorized by a creative interpretation of the Patriot Act’s amendments to FISA.
The section 215 phone records program was modeled on an earlier, Internet metadata bulk collection program that began after September 11. The FISC approved the Internet metadata program under the pen register/trap and trace (PR/TT) provisions of FISA – as amended by section 214 of the Patriot Act. The Internet metadata program – known as the PR/TT program – had serious compliance problems because it was difficult for the NSA reliably to segregate Internet metadata from Internet content. Still, the FISC continued to approve the PR/TT program, with modifications, until the NSA itself chose to end the program in 2011.
As a result, the FISC’s orders approving bulk metadata collection remain a viable interpretation of the PR/TT provisions of FISA and would have precedential value in any effort to resume bulk collection, whether of Internet or telephony metadata. The PR/TT provisions of FISA are not limited to Internet metadata. If anything, they apply more naturally to traditional telephony metadata, as they cover “dialing, routing, addressing, or signaling” information. Section 214, unlike section 215, is not going to expire tomorrow – it was made permanent in 2005.
The Obama administration has understandably not talked much about this. It doesn’t want to take pressure off Congress, and there is always risk in advancing a modified legal theory which would certainly face opposition from telecommunications providers. The administration may feel differently on Monday, after section 215 has expired and it is facing an intelligence gap. Government lawyers would only need to persuade the court that telephony metadata are “dialing, routing, address, or signaling” data – which they plainly are.
The NSA might well seek to switch its arguments before the FISC from section 215 to the PR/TT theory even if section 215 were reauthorized unchanged, as McConnell has proposed. The existing program is on shaky legal ground because of the Second Circuit’s rejection of the FISC’s interpretation of section 215.
The NSA’s bulk Internet metadata program is far less well known than its phone records counterpart, probably because it was terminated in 2011 -- two years before Snowden leaked it and the government confirmed it. Still, the drafters of the USA Freedom Act were careful to extend its reforms of bulk collection beyond section 215 of the Patriot Act. The USA Freedom Act prohibits bulk collection not only under section 215, but also under either the PR/TT provisions of FISA (section 214 of the Patriot Act) or through the use of “national security letters.”
Senator Rand Paul (R-KY) and his supporters should understand that, if they succeed in blocking the USA Freedom Act, there is no guarantee that bulk collection will end simply because section 215 expires. In fact, they may well end up preserving, not ending, the very bulk collection they oppose.