WASHINGTON D.C. — Section 215 of the USA PATRIOT Act, which authorizes the bulk collection of all Americans’ telephone records by the National Security Agency (NSA), is set to expire on May 31st at 11:59 PM. According to Senate Majority Leader Mitch McConnell, the Senate will vote on the House-passed USA FREEDOM Act — which reauthorizes the PATRIOT Act but ends the bulk collection program and enacts other reforms — before leaving for its Memorial Day recess. With the House already having left for its recess, if the Senate passes any extension of the PATRIOT Act other than the USA FREEDOM Act, it will guarantee that Section 215 sunsets.
“Sen. McConnell is playing a dangerous game with the PATRIOT Act,” said Berin Szoka, President of TechFreedom. “If Section 215 sunsets, creating a gap in U.S. intelligence capabilities, then the Majority Leader will have no one to blame but himself. Section 215 may have legitimate targeted uses, but neither the House nor the American people will accept its renewal without ending bulk collection. USA FREEDOM is a carefully crafted compromise that would preserve intelligence capabilities — short of bulk collection — that cannot be found under other authorities. If Sen. McConnell wants to avoid any gaps in intelligence connection, he must make sure USA FREEDOM passes.”
Contrary to statements from some hawkish, anti-reform Senators, a Section 215 sunset and enacting USA FREEDOM are not the same. USA FREEDOM would preserve the government’s ability to collect, in a targeted way, any information relevant to an investigation, while a 215 sunset would revert to the much more limited pre-2001 standard, which only allows for collection of certain travel-related records and the contents of physical storage units. On the other hand, a Section 215 sunset would end bulk collection only under that authority, while USA FREEDOM would also prohibit bulk collection from the Foreign Intelligence Surveillance Act’s pen/trap authority and national security letters.
“A Section 215 sunset may be more permanent than Sen. McConnell thinks,” said Ryan Radia, Associate Director of Technology Studies at the Competitive Enterprise Institute. “If the federal government’s authority to collect bulk records lapses, it’s quite possible that when Congress returns in June, it will refuse to reinstate authority that no longer exists. Creating any kind of new surveillance program will be far more difficult, politically, than would have been an extension,“ concluded Radia, citing polling data indicating that 60% of Americans, including 59% of “very conservative” Americans, oppose bulk collection.