Phone Data Collection Sure to Continue Despite Patriot Act Expiration

NEWS ANALYSIS: Just because the legislative authority for bulk collection of phone metadata officially ended as of June 1, that doesn't mean it has actually stopped,  because it hasn't.

Patriot Act Data 2

The good news, if you're a civil libertarian, is that Section 215 of the Patriot Act officially expired at midnight on May 31. The bad news, if you're a civil libertarian, is that the National Security Agency isn't stopping its collection of phone data for long. If you're familiar with how things work in Washington, this shouldn't surprise you.

Anyone who knows how government works already knows that something simple like a mere expiration of legal authority is little more than an inconvenience to a body like the U.S. Senate. This is especially the case when a canny old politician like Senate Majority Leader Mitch McConnell (R-KY) runs things.

What's actually going on here is that late in the evening of Sunday, May 31, the Senate successfully voted for cloture, which is a parliamentary maneuver designed to end debate on a topic. In this case the debate was about the USA Freedom Act, which had previously been turned down by the same Senators a few days earlier. By closing off debate the Senate voted to move the Freedom Act ahead so that it can be voted on by the full Senate, which presumably could happen as soon as June 2.

But before the Senate can vote on the USA Freedom Act, it must first deal with a stack of amendments filed by McConnell. Those amendments would give the NSA anywhere from six months to a year to wind down the phone record data collection process.

In the meantime, the intelligence community and the phone companies would get together on the processes necessary to allow phone companies to store the same data that the NSA is now collecting. Once that data is stored, the various intelligence services would be required to get a warrant before they could look at it.

Those amendments have to be cleared through the required Senate committees and if they're approved, they become part of the Freedom Act. Because most of those amendments are simply varying time delays, chances are only one would become part of the Senate's version of the bill. But in any case, the new and (supposedly) improved Freedom Act would have to be voted on and passed by the full Senate.

Assuming that the Senate approves the amended Freedom Act, which is not a foregone conclusion, then the revised bill goes back to the House of Representatives. Passage by the House is not considered likely unless the delay for wrapping up the data collection process is fairly short.

If none of the amendments pass, then the Senate would vote on the existing House bill. If it actually passes, the Senate would forward the Freedom Act to the President for signing. The White House has already said that the President will sign that bill, reluctantly.

If anything other than this happens, section 215 of the Patriot Act exists in a sort of legislative limbo. But that doesn't mean that data collection will end.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...