WASHINGTON -- Forget Edward Snowden. It was congressional dysfunction that brought down the Patriot Act.
In a sensational late-night Senate session Sunday, lawmakers failed to pass a bill that would have kept the NSA’s controversial data collection programs running.
The provisions that expired Sunday, specifically Section 215 of the law, have allowed the government to vacuum up details on the email and phone records of millions of Americans since they were first approved by Congress in 2001.
Despite advocates warning for years that the pending expiration needed to be dealt with, Congress, in standard Washington fashion, gambled until the last minute and lost -- at least temporarily.
Lawmakers are expected to pass the USA Freedom Act sometime this week, so its likely only a matter of days before the NSA has the programs up and running again. But senior administration officials under the guise of anonymity have rattled the sabers in recent days, saying that this interim lapse, even if only temporary, has massive consequences for national security.
Here’s the real deal on what the government can and can’t do until Congress passes the USA Freedom Act:
The government will no longer be able to force phone and telecommunications companies to turn over information on all of your calls and emails, like who you call and when you call them, or who you’re emailing and when you’re emailing.
The biggest sticking point in the ongoing NSA debate is section 215 of the Patriot Act -- or in intel shop talk, the Business Records or BR provision. Under the current lingo of Section 215 -- the language that expired Sunday at midnight -- the U.S. government can demand telecommunications companies turn over bulk call records of a U.S. citizen with relatively low barriers for cause.
Additionally, the current 215 language allows the government to collect up to three “hops” outside of a person they deem guilty of suspicious activity -- so if you’re talking to a friend who is talking to their friend who is talking to a suspect, you’re getting vacuumed up too.
Of course, the government may very well be sucking up all of this data under a different program that’s running under a different secret law. But the one currently operating under Section 215 of the Patriot Act isn’t legally permissible right now, since the statute under which it’s justified is null and void for the moment. So it’s one less thing to worry about, if you’re a glass-half-full kind of person.
But, they still have tools to track terrorists under continuing investigations.
There’s a handy little "grandfather clause" in Section 224 of the Patriot Act, which allows the government to continue running programs as long as they have to do with active investigations that were occurring before midnight on Sunday.
In these intervening days, statements suggest officials are probably still using the other programs that expired Sunday night -- like roving wiretaps, which allow the government to track terror suspects who use multiple phones, and individual court orders under the now-defunct Section 215.
White House press secretary Josh Earnest said Monday that the government was continuing to use individual 215 orders.
Law enforcement officials have indicated for years that the FBI runs continuing, long-term enterprise investigations into groups like al-Qaeda, so it’s likely that if the government truly needs to track someone, they’ll be able to fit it under one of their grandfathered investigations.
But in the days leading up to the expiration, White House officials explicitly said that they won’t continue the controversial bulk collection program under the grandfather clause.
In fact, they can’t. Because...
The court order the government was using to collect all of your information ran out too.
Under the current system, the government was getting bulk orders approved by a secret court every 90 days to compel phone companies to turn over information. The current 90-day order ran out May 31; the deadline to seek a new 90-day court order was last Friday, May 22, and word on the street is that the government didn’t file anything. So not only did the government’s ability to ask for those orders expire, the actual order did, too.
“As we understand it, the current 90-day period ends May 31st,” said Alex Abdo, a staff attorney for ACLU that handles NSA matters. “And there is not a renewal application ... or so they said.”
But, the government may still hold onto old stuff.
No one is exactly sure what Sunday night’s expiration means for the troves of communications data the government has collected over the years. Currently, it’s allowed to keep the information in its stores for up to five years. The government has said it only turned off the servers on Sunday night; it didn't wipe them.
“They have not said what they’re going to do about that,” Abdo said. “It’s possible they keep everything they currently have [until it has to be purged].”
David Greene, civil liberties director and senior attorney for the Electronic Frontier Foundation, pointed out that the group’s lawsuit against the government requires authorities to keep some of the information they’ve already collected. The lawsuit -- First Unitarian Church of Los Angeles vs. NSA, says the agency violated 22 organizations’ first amendment rights by vacuuming up their phone records. The collected data is evidence, and a court ordered the government last year to preserve the data for the case.
“In order for us to prove our case, they’re going to have to keep it,” said Greene.
The question is whether the government can go back into that trove of collected information and sift through it after it restarts the program. As far as that goes, “it’s a lot of unknowns,” Greene said.
The government can still get your information from telecommunications companies, but it’s slightly harder to do.
The U.S. government can still go to the secret court and get warrants to compel telecom companies to turn over information on your emails and phone calls, or issue National Security Letters to compel third-party companies to give them your data.
“It’s just a much more restrictive standard that the government has to meet to collect information,” said Neema Singh Guliani, a D.C.-based legislative counsel for the ACLU who also works on NSA issues. “Instead of this 'relevance' standard, they have to demonstrate [the target] is an agent of a foreign power.”
This story has been updated throughout to reflect the expiration of Patriot Act provisions on Sunday.
CORRECTION: A previous version of this story misattributed quotes by Alex Abdo to Josh Bell, who works on NSA issues for the American Civil Liberties Union.
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