Is Section 215 About to Die?

Is Section 215 About to Die? May 26, 2015

The Senate failed to pass anything regarding the sunsetting of Section 215 of the Patriot Act, the provision that has been used to justify mass data collection on all Americans, and now it’s looking like it’s going to quietly die at the end of the month. My old colleague Spencer Ackerman reports:

Even as the Senate remains at an impasse over the future of US domestic surveillance powers, the National Security Agency will be legally unable to collect US phone records in bulk by the time Congress returns from its Memorial Day vacation.

The administration, as suggested in a memo it sent Congress on Wednesday, declined to ask a secret surveillance court for another 90-day extension of the order necessary to collect US phone metadata in bulk. The filing deadline was Friday, hours before the Senate failed to come to terms on a bill that would have formally repealed the NSA domestic surveillance program.

“We did not file an application for reauthorization,” an administration official confirmed to the Guardian on Saturday.

The administration decision ensures that beginning at 5pm ET on 1 June, for the first time since October 2001 the NSA will no longer collect en masse Americans’ phone records…

A chaotic early morning on Saturday in the Senate ended with the procedural defeat of the USA Freedom Act, which would have banned the NSA bulk collection program while renewing an expiring Patriot Act provision allowing FBI access to business records and a vast amount of US communications metadata.

But McConnell, who is seeking to retain all current domestic surveillance powers, also failed to convince the Senate to pass a temporary extension of the provision, known as Section 215, which shuts down at midnight on 31 May. McConnell’s alternative would retain all existing FBI under Section 215 as well as the NSA bulk phone records collection.

If they do manage to pass a short-term emergency extension, it isn’t clear that the House would approve of it at all. The House overwhelmingly voted for the USA Freedom Act a week or so ago, with about equal numbers of Republicans and Democrats supporting it — and a sizable number of those who voted against it doing so because it didn’t go far enough in restricting the NSA’s data mining operations. The Obama administration has already begun to take the computers running that data mining program offline, so it will be shut down at least for a time.

I suspect what will happen is that the Senate will eventually capitulate to the USA Freedom Act because the House vote was so overwhelming. And while that bill is far from perfect, it would be the first time that Congress has placed more than token restrictions on NSA surveillance since 9/11. It’s a step, however small, in the right direction.

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