Sen. Patrick Leahy, D-Vt., arrives for a committee hearing on Capitol Hill, on April 8, 2014.

Sen. Patrick Leahy, D-Vt., arrives for a committee hearing on Capitol Hill, on April 8, 2014. Pablo Martinez Monsivais/AP

NSA's Mass Phone Spying Will Continue for at Least Another 90 Days

The NSA’s mass spying program earns another rubber stamp nearly a year after President Obama’s pledge to end it. By Dustin Volz

A federal court has renewed an order allowing the government to continue unchecked its bulk collection of Americans' phone records, a decision that comes nearly a year after President Obama promised to end the spying program in its current state.

The Foreign Intelligence Surveillance Court approved last week the Justice Department's request for another 90-day extension of the National Security Agency's most controversial surveillance program, which was publicly exposed last summer by Edward Snowden. The spying authority is next set to expire on Feb. 27, 2015.

The extension, announced Monday, is the fourth of its kind since President Obama pledged in January to reform how the NSA spies on U.S. citizens, during a major policy speech intended to give Americans "greater confidence that their rights are being protected, even as our intelligence and law-enforcement agencies maintain the tools they need to keep us safe."

At the time, Obama outlined a series of immediate steps he would take to reform some surveillance practices and increase transparency, but he said he would wait for Congress to send him a bill tailored to his specifications before moving forward on broader reform.

Congress, however, has failed to enact reform, despite more than a year of negotiations that have spanned across both chambers.

"The administration welcomes the opportunity to work with the new Congress to implement the changes the president has called for," the Justice Department and the Office of the Director of National Intelligence said in a joint statement issued Monday. "Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the president directed in January."

Last month, legislation that would have ended the government's bulk collection of U.S. phone metadata—the numbers and time stamps of calls but not their actual contents—died in the Senate, coming up two votes short of the 60-vote threshold needed to advance as nearly all Republicans coalesced in opposition. The measure, the USA Freedom Act, had accrued support from the tech industry, privacy groups, the White House and even senior intelligence officials, but the backing could not overcome GOP worries that curtailing the NSA could help foreign terrorists kill Americans.

Amid the inaction, the FISA Court has now renewed the NSA's most controversial spying program four times—in March, June, September, and now December. The renewals have irked NSA critics, who have repeatedly asked Obama not to wait for a dysfunctional Congress to implement surveillance changes.

"Nearly a year after President Obama promised to end the bulk collection of telephone records under Section 215 of the Patriot Act, his administration will once again ask the secret FISA Court to bless yet another extension of the program," said Amie Stepanovich, senior policy counsel with the Internet-freedom group Access, in a statement. "This is not acceptable. The president has the power to protect individual privacy and to immediately end this program—with no need for congressional action."

Even members of Obama's own party have urged him to let the program lapse. "The president can end the NSA's dragnet collection of Americans' phone records once and for all by not seeking reauthorization of this program by the FISA Court, and once again, I urge him to do just that," Senate Judiciary Chairman Patrick Leahy, who authored the USA Freedom Act, said in a statement last week. "Doing so would not be a substitute for comprehensive surveillance reform legislation—but it would be an important first step."

But the president has shown no willingness to act unilaterally on domestic spying, despite doing so on a variety of other issues. That calculation is likely complicated by Republicans' insistence that Obama has overstepped the constitutional bounds of his office, a charge that brought a lawsuit from the House of Representatives earlier this year.

Congress will have to act in some fashion on NSA spying before June of next year, when key portions of the post-9/11 USA Patriot Act will sunset, including Section 215, a contentious provision that grants the government much of its spying authority.