Phone Data Collection Sure to Continue Despite Patriot Act Expiration

By Wayne Rash  |  Posted 2015-06-01 Print this article Print
Patriot Act Data

Congress has already shown that it's unable to overcome an Executive Order, despite there being a Republican majority in both houses, which means an EO authorizing the data collection would give the intelligence community the cover it needs.

Why, you might ask, would the President risk issuing an Executive Order on something as sensitive as bulk collection of phone metadata? The reason is actually fairly simple, and similar actions have already happened. Consider the lack of action on immigration last year that resulted in an Executive Order essentially changing the rules once Congress had shown it was unable to act. It's not any stretch at all for the same thing to happen in this case.

The Senate certainly knows that the President might take such executive action. In fact that may be what the now totally dysfunctional Congress is relying on. Senators would be able to say that they didn't vote for a continuation of the phone record collection. The President, meanwhile, isn't running for office again and thus doesn't care about the political fallout. In any case, he has already gone on record as being in favor of the data collection.

There is one entity that could bring an end to the mass phone data surveillance, and that's the federal courts. The U.S. Court of Appeals has already said that the collection of phone metadata is unconstitutional, but it didn't order a stop, apparently thinking the expiration would solve the problem. The court, if it has the opportunity to act, could issue an order to halt such bulk collection, but that could take years.

Meanwhile there are other parts of the now expired Patriot Act that could have an effect on the nation's security. Besides authorizing the bulk collection of phone metadata, other Patriot Act sections that need to be reauthorized include the "lone wolf" provisions that allow surveillance of people who aren't part of a terrorist group, and the ability to tap all of a suspect's phones, even if that person changes phones.

The thing that is most bizarre and ironic about the current debate is that those last two rules actually have some relevance to protecting our security as the number of such attacks illustrate. But the fight is over the one part of Section 215 that's never been used for anything, has never resulted in a single conviction that we know of, nor has it ever played a documented supporting role in preventing terrorist attacks.

So while the highly public and vocal debate of the expiration of the Patriot Act has been over a provision that appears to have no use, the intelligence community is losing two tools that it actually needs. Now, knowing that your phone call data will still be recorded, this is still a good time to have a talk with your Senator and see if any of this makes sense to them.



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