The Senate‘s failure to pass surveillance-reform legislation on Sunday night led to the unprecedented expiration of key parts of a landmark spying law. But the government still has a few tricks up its sleeve to preserve the powers it technically just lost.
The three provisions of the USA Patriot Act that just expired—Section 215, the “lone wolf” provision, and the “roving wiretap” provision—contain “grandfather clauses” that let the government keep using them for investigations that began before their midnight expiration.
Among those investigations are what the New York Times describes as “long-running, open-ended ‘enterprise’ investigations into groups that pose a threat to public safety, like Al Qaeda.”
Section 215 is the most famous of the expired provisions, because it served as the legal basis for the government bulk telephone-records collection program exposed by Edward Snowden. In addition to querying the NSA‘s database of bulk phone records, law-enforcement agencies could also use Section 215 to make individual requests to businesses for things like movie-rental recipients and medical bills.
Last week, the Times reported that the Obama administration might invoke the grandfather clause on one or more of the provisions if it found that it needed to collect records for an active investigation.
As the intelligence community assess its remaining authorities, the Senate is preparing to pass the reform bill, known as the USA Freedom Act, as early as Tuesday. The bill is expected to reauthorize the lone-wolf and roving-wiretap provisions as they were, while modifying Section 215 to transfer records collection from the government to the phone companies.
The grandfather clause in Section 215 is apparently not limited to one-off resurrections of collection authority for specific cases. According to the Times, the Obama administration believes that it could go to the Foreign Intelligence Surveillance Court (FISC), which approves requests for Section 215 surveillance warrants, and ask the court to bring back the entire bulk records-collection program.
But the administration has decided not to test that legal approach in light of a federal appeals court’s recent ruling that Section 215 had never authorized the program in the first place. That decision led the administration to begin winding down the program in advance of Sunday’s Senate vote, and it has put the government in the unusual position of not wanting the FISC to issue any further legal recommendations.
“Seeking to avoid a confrontation,” the Times reported, “the government is trying to avoid asking the surveillance court to say anything more about the program until Congress enacts new legislation.”
Even if the government does not use the expired provisions’ grandfather clauses, the intelligence community retains many other useful tools that could supplant the now-defunct laws. Section 214 of the Patriot Act, which did not expire, authorizes a surveillance tool called “pen register/tap & trace,” which the National Security Agency, Federal Bureau of Investigation, Central Intelligence Agency, and other government agencies can used to gather communications records.
The FBI and other agencies can also send companies secret National Security Letters compelling the production of customer data. NSLs come with built-in gag orders that prevent the companies that receive them from revealing their existence.
Illustration via Max Fleishman