The expiration of provisions in the Patriot Act on Sunday night doesn’t necessarily spell the end of bulk data collection, according to surveillance experts.
The reason is two-fold. The fight in the Senate is over Section 215 of the Patriot Act, the provision the government uses for bulk collection of Americans’ phone records. When that section “sunsets” at midnight Sunday, the rule reverts to its pre-Patriot Act form.
“Section 215 becomes more narrow,” Harley Geiger, senior counsel and deputy director for the Freedom, Security and Surveillance Project at the Center for Democracy and Technology, told the Washington Examiner Sunday night. “It says the government can collect information from travel agencies, hotels, motels, rental car companies, and they can do it if they believe the suspect is a foreign power or agent for a foreign power, a terrorist, a spy, etc.”
“The difference here is, Section 215 is not limited in terms of what kind of record that is sought, and the person [under investigation] does not have to be an agent for a foreign power,” Geiger added. “They just have to be relevant to the investigation, and the government can interpret anyone as relevant.”
The second reason that things likely won’t change much is that the Patriot Act already has another rule on the books known as Section 214. “The statute was used for bulk collection of email data until 2011. The government shut it down because they weren’t getting enough intel out of it. But it did not lack legal authority. Section 214 is already in the law.”
The main difference between the two sections is that 214 is more limited when it comes to which records it can get. “With Section 215, you can get any kind of record, so one example is financial transactions. You cannot get that with [214], but you could get Internet records and phone records.”
Edgar, who is a visiting scholar at Brown University’s Watson Institute for International Studies, wrote that the Obama administration has downplayed the existence of Section 214. “It doesn’t want to take the pressure off Congress, and there is always risk in advancing a modified legal theory which would certainly face opposition from telecommunications providers.”
Geiger said it’s a fallacy to think that when Section 215 expires, workers at NSA will simply turn off their machines and go home.
“That’s the bumper sticker version, and the reality is more complicated,” he said. “I often fear that bumper sticker versions are the ones that move the needle.”
Judge Andrew Napolitano, senior judicial analyst for Fox News, made a similar point about the NSA’s continued ability to collect data.
Appearing on “Shepard Smith Reporting” on Wednesday, Napolitano said there are two other provisions in the law that the NSA relies on, which will cause the agency to continue to spy on Americans.
“One of those is a section of the [Foreign Intelligence Surveillance Act] called Section 702,” Napolitano explained. “And one of them is a still existing executive order signed by President George W. Bush in the fall of 2001, which has not been tinkered with, interfered with, or rescinded.”
Napolitano said that the “NSA will continue to spy, because they are a part of the military and if the commander-in-chief tells them to spy, they’ll spy.”
The government’s bulk data collection faces separate legal hurdles, the most recent of which it lost May in a federal district court.
That ruling raised the question of whether Section 215 had ever legally authorized what the government was doing in the first place. “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” ruled Judge Gerard Lynch in that case.
