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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.
Phone Data Collection Sure to Continue Despite Patriot Act Expiration
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.