Congress Could End Mass Surveillance With Next Patriot Act Vote

By Trevor Timm, Guardian UK

18 April 15

ALSO SEE: 'Significant' Number of Senators Back Privacy Push

On 1 June Section 215 of the Patriot Act - which has been used to vacuum up American’s telephone records - will expire unless Congress reauthorize it

n less than 60 days, Congress - whether they like it or not - will be forced to decide if the NSA’s most notorious mass surveillance program lives or dies. And today, over 30 civil liberties organizations launched a nationwide call-in campaign urging them to kill it.

Despite doing almost everything in their power to avoid voting for substantive NSA reform, Congress now has no choice: On 1 June, one of the most controversial parts of the Patriot Act - known as Section 215 - will expire unless both houses of Congress affirmatively vote for it to be reauthorized.

Section 215 of the Patriot Act was the subject of the very first Snowden story, when the Guardian reported that the US government had reinterpreted the law in complete secrecy, allowing the NSA to vacuum up every single American’s telephone records - who they called, who called them, when, and for how long - regardless of whether they had been accused of a crime or not. (The NSA’s warped interpretation of Section 215 was also the subject of John Oliver’s entire show on Sunday night. It is a must-watch.)

The massive phone dragnet is not the only thing Section 215 is used for though. As independent journalist Marcy Wheeler has meticulously documented, Section 215 is likely being used for all sorts of surveillance that the public has no idea about. There are an estimated 180 orders from the secret Fisa court that involve Section 215, but we know only five of them are directed at telecom companies for the NSA phone program. To give you a sense of the scale: the one Fisa order published by the Guardian from the Snowden trove compelled Verizon to hand over every phone record that it had on all its millions of customers. Every single one.

While the government claims that its other uses of Section 215 are “critical” to national security, it’s extremely hard to take their word for it. After all, the government lied about collecting information on millions of Americans under Section 215 to begin with. Then they claimed the phone surveillance program was “critical” to national security after it was exposed. That wasn’t true either: they later had to admit it has never stopped a single terrorist attack.

We also just learned two weeks ago that the NSA knew the program was largely pointless before the Snowden leaks and debated shutting it down altogether. Suddenly, after the Snowden documents became public, NSA officials defended it as “critical” again when they had to go before an increasingly skeptical Congress.

Is Section 215 being used to collect massive amounts of other data on Americans? Well, the New York Times reported last year that there are multiple different bulk collection programs under different authorities that are still secret. And Ron Wyden, while not specifying which law was being used, indicated in an interview last month that there were several spying programs directly affecting Americans that were still secret. And there’s evidence to suggest they’re doing so for supposed “cyber” crime investigations.

Whatever else they’re doing with Section 215 behind closed doors, the phone surveillance program is illegal. As the author of the Patriot Act, Republican Congressman Jim Sensenbrenner has said: “I can say that without qualification that Congress never did intend to allow bulk collection when it passed Section 215, and no fair reading of the text would allow for this [mass phone surveillance] program”.

It’s also likely unconstitutional, as the first federal judge to look at the program ruled almost a year ago. Judge Richard Leon wrote at the time in his landmark opinion: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval”.

These days, Congress can barely get post office names passed, let alone comprehensive reform on any subject affecting the American people. So the fact that they haven’t passed NSA reform yet says more about their near-total dysfunction than the American public’s views about privacy.

But now they have no choice. A year and a half ago, the House came within a few votes of cutting off funding for Section 215 in an unorthodox appropriations vote and, since then, opposition to the NSA’s massive spying operation on Americans has remained strong.

Only time will tell if Congress will actually receive this message. But if citizens call their representatives, they might just get it. Then, come June, the NSA will have a lot less of our private data at their fingertips.