After the defeat of NSA reform in the Senate Tuesday, expectation for a change in government surveillance powers shifted to next year when the PATRIOT Act expires, taking bulk spying authority with it unless the Obama administration exploits a legal loophole that could expand the collection of Americans’ phone records far into the future.
Section 215 of the USA PATRIOT Act underpins the legality of NSA’s collection and retention of nearly all Americans’ landline telephone records — justification that is set to expire June 1 without a renewal from Congress it likely won’t receive in the fallout of the Snowden leaks, which revealed the program.
The USA FREEDOM Act would have taken collection of such records out of NSA’s hand and put it in those of service providers while establishing a criteria for intelligence agencies to search the data. The act also reauthorized certain PATRIOT Act provisions for another two years, but the legislation was defeated by Republicans in the Senate this week, seemingly setting up a deadline for the new Republican-controlled Congress to act by early next year or lose the government’s post-9/11 expanded surveillance powers entirely. (RELATED: Senate Sinks NSA Reform)
That may not be the case according to the former top lawyer on the Senate Intelligence Committee, who told the New York Times this week that a legal loophole authorizing uninterrupted surveillance in ongoing investigations could keep the program running regardless of how Congress acts.
“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Michael Davidson said in the report.
The provision in question states that any part of the PATRIOT Act — including Section 215 — expires “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”
Davidson added that “considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”
Though the Obama administration would almost certainly face torrential criticism for green-lighting the program based on the loophole, that may not matter to a president past his final midterm election — especially one who rejected reforming the 215 program years before it came to light in response to legal hurdles and national security concerns.