Note: This piece was published as a commentary on the CSIS website at this link.
Last night, Section 215 of the USA Patriot Act, the law authorizing the U.S. government to collect a broad variety of business records for national security investigations expired after Congress failed to pass the USA Freedom Act, a straight reauthorization of the provision, or any alternative bill that would have extended the authority.
Section 215 conferred subpoena-like authority to the Foreign Intelligence Surveillance Court (FISC) to order companies, organizations, and other third party entities to turn over records and other tangible things to federal investigators. It served as the basis for the National Security Agency’s (NSA) controversial bulk telephone metadata collection program disclosed to the public by Edward Snowden, although the legality of the program is contested.
Current and former intelligence community officials and FBI Director James Comey have said that Section 215 provides an essential tool and losing the authority will “severely” impact terrorism investigations, but the truth is that the government can most likely access the same information through other surveillance statutes that did not expire.
National Security Letters and pen register/trap and trace orders enable government access to a broad range of business records and telephone metadata held domestically. Section 702 orders under the Foreign Intelligence Surveillance Act (FISA) and other overseas surveillance activities conducted under Executive Order 12333 enable the collection of the contents of certain foreign communications for terrorism investigations. Together these surveillance authorities may fill the intelligence gap created by the lapse of Section 215, although it may be slower, narrower, and more cumbersome. The Department of Justice may also invoke the grandfather clause built into the sunset provision to continue to use Section 215 authorities for approved investigations that started prior to June 1, 2015.
The two other provisions of law governing U.S. surveillance activities that expired last night along with Section 215 will leave a larger gap in intelligence investigations. Section 206 of the USA Patriot Act, the so-called “roving wiretap” provision which allowed the Foreign Intelligence Surveillance Court (FISC) to authorize surveillance on a target across multiple cell phones or communication devices and Section 6001 of the Intelligence Reform and Terrorism Act which enabled surveillance of individuals not necessary tied to a foreign government or terrorism organization, but acting as a “lone wolf.” Both are critical authorities to which few have raised objections.
Failure to pass legislation also means that “roamer” problem will persist. Roamers are lawfully targeted foreigners that the U.S. government is spying on abroad who suddenly travel to the United States, where continued surveillance requires a FISA warrant. The USA Freedom Act would enable surveillance of the target after he/she enters the United States for a limited period of 72 hours to provide time for the FBI to acquire a warrant. Alternative legislative proposals by Senator Feinstein and Senator Burr also seek to address the roamer issue.
Currently, Congress has been focused reforms that would end bulk collection and improve transparency and accountability with regard to domestic surveillance activities under FISA. But Congress should prepare for a larger battle ahead in exactly two years from today – June 1, 2017 – when Section 702 of FISA which governs foreign intelligence collection overseas, the most valuable sources of intelligence for terrorism and other national security investigations, expires.