Here's What Happens To Spying With the Patriot Act Now Expired
Some key authorities may be dead for now, but the intelligence community has a number of weapons and workarounds still available.
The Senate packed up Sunday evening without extending the expiring surveillance provisions of the Patriot Act, meaning that—for now, at least—the U.S. intelligence community is without tools that it says are vital to national security, including the National Security Agency's bulk collection of U.S. call data.
Thanks to the stubborn opposition of Sen. Rand Paul and a gamble with the clock by Majority Leader Mitch McConnell that sorely backfired, the Senate failed to deal with the three controversial parts of the post-9/11 act that reached sunset the moment the calendar turned to June.
The lapse appears likely to only last a few days, as lawmakers are expected to pass a White House-supported surveillance-reform bill—the USA Freedom Act—as soon as Tuesday that would revive the spying authorities, but with a host of transparency and oversight reforms tacked on.
The war isn't over yet, though, as McConnell filed a handful of amendments late Sunday that are intended to weaken some of the measure's reforms. If any pass the Senate, legislative ping-pong with the House could drag the process out even further.
While Congress figures out its next step, the administration and defense hawks, though at odds over the the merits of the reform measure, agree that "going dark" is irresponsible and creates unnecessary uncertainty for the intelligence community.
But privacy advocates and two government review panels say such fears are overstated, reflective of a surveillance-state mind-set that has crossed party lines in Washington and spanned the length of two presidencies.
The most controversial and far-reaching of the now-dead authorities of the Patriot Act is Section 215, which allows government spies and law-enforcement professionals to seize "any tangible things" deemed relevant to a terrorism investigation.
Section 215 has always been a boogeyman for privacy advocates, who believed its "relevancy" standard was too loosely interpreted by the FBI and others to pry into all sorts of data—such as library or financial records—kept by third parties on law-abiding Americans.
Those fears were borne out two years ago when Edward Snowden's leaks confirmed that the National Security Agency was using Section 215 to collect in bulk millions of U.S. call records every day, via secret 90-day court orders granted under the Foreign Intelligence Surveillance Court.
"These tools are important to American lives," CIA Director John Brennan said Sunday on CBS'sFace the Nation. "These tools give us better ability to see the tactical moves that various terrorist groups may be making."
But while the administration contends such a sudden termination is akin to playing Russian roulette with national security, the NSA's phone-records program has been deemed ineffective by a presidential review group and a majority of the Privacy and Civil Liberties Oversight Board. It also was ruled illegal last month by a federal appeals court, which said that the government's interpretation of "relevant" to mean "everything" was meritless and not intended by most members of Congress when the Patriot Act was passed.
Anti-surveillance critics also strongly push back on assertions that the broader uses of Section 215 help secure national security. That view gained steam last month with the release of a Justice Department inspector-general report concluding that the FBI could "not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders."
The two other two spy provisions that expired Monday are the so-called "roving wiretap" authority, which allows investigators to surveil an individual suspected of terrorist activity across multiple devices rather than requiring approval to snoop on each device, and the "lone wolf" authority, which allows surveillance on suspects who don't have confirmed ties to foreign terrorist groups. The roving wiretap has been rarely used by the intelligence community in recent years, while lone-wolf has never actually been used, though the FBI insists it is an important tool to keep at its disposal.
These authorities may be dead for now, but the intelligence community has a plethora of spying weapons and workarounds still accessible, including national security letters and the controversial Reagan-era Executive Order 12333. Like Section 702 of the Foreign Intelligence Surveillance Act, 12333 is intended for overseas surveillance, although an unknown amount of U.S. data is "incidentally" tracked, particularly for citizens living abroad or those who communicate with foreigners.
Either way, the Patriot Act powers appear likely to be resuscitated this week when the Senate passes the USA Freedom Act, which already cleared the House with overwhelming bipartisan support last month. The keystone of the Freedom Act, its backers say, is that it would end the NSA phone dragnet in favor of a system that relied on telephone companies to provide select phone records to the government on an as-needed, judicially approved basis.
But McConnell wants to tack on a number of amendments—including one that would lengthen the transition away from the bulk-surveillance regime, and toward the more limited query system, from six months to a full year. Another amendment strikes out a part of the bill calling for expanded declassification of orders granted under the secretive Foreign Intelligence Surveillance Court. If any of McConnell's changes are adopted in the Senate, they face an uphill battle in the House, given its tea-party influences and the wide bipartisan popularity of the base language in the Freedom Act.
As the legislative jockeying conntinues, even Paul—who is running for the GOP presidential nomination and who has used his fierce opposition to government surveillance as a fundraising pitch—conceded that he expected the Freedom Act to ultimately pass soon.
"Tonight, we stopped the illegal NSA bulk-data collection," Paul said in a statement after the Senate recessed. "This is a victory no matter how you look at it. It might be short lived, but I hope that it provides a road for a robust debate, which will strengthen our intelligence community, while also respecting our Constitution."