POLITICS

'There's Not A Failsafe' If NSA Programs Expire, Administration Says

05/27/2015 09:34 pm ET | Updated May 27, 2015
NICHOLAS KAMM via Getty Images

WASHINGTON -– The National Security Agency will begin shutting down its massive bulk data collection systems one minute before Congress is scheduled to convene on Sunday to consider reforming the agency's expiring surveillance powers.

A senior administration official said Wednesday that the NSA was putting into place shutdown protocols, which will include cutting off access ports between telephone companies and the spy agency, turning off hard drives and servers, and shutting down databases after midnight on Sunday.

“3:59 [p.m. on Sunday], that’s when we start taking down the system,” the official said.

In a brilliant show of Washington dysfunction, Congress doesn’t convene to debate the USA Freedom Act, the House-passed measure that would reform NSA data collection, until 4 p.m. Sunday.

While most of the focus has been on the NSA's bulk data collection programs, administration officials said Wednesday that they're worried about three other NSA programs that will expire at midnight Sunday unless Congress acts.

One program is the individualized "routine use" of the Patriot Act's Section 215 authority in basic national security investigations. Also expiring are Patriot Act provisions that allow roving wiretaps, to track suspected terrorists or spies if they switch phones, and the yet-to-be-used lone wolf provision, which allows intelligence agencies to track a suspect who hasn't been linked to a particular terror group.

“These are three authorities separate and apart from the bulk telephone metadata program that will lapse if Congress fails to act,” a different senior official said.

It remained unclear Wednesday whether intelligence agencies could continue using those programs for investigations already underway, even if the provisions expire. The USA Freedom Act, the officials said, was the only way to preserve the legal authorities and to wind down controversial bulk telephone data collections and transfer that function to phone companies.

“There’s no good reason to court unnecessary risk by the Senate not acting,” the second official said. “This is the only clear path, risk-free path at this point to secure both needed, appropriate reforms to the bulk telephone metadata program and would allow these authorities … to continue without any lapse.”

With Sen. Rand Paul (R-Ky.), a fierce critic of NSA surveillance of ordinary Americans, promising he won’t back down until the Patriot Act provisions expire, a lapse may be inevitable.

“There’s not a failsafe,” yet another official said, when asked if intelligence agencies have ways to work around the expiring provisions. “You could try to use other investigative tools to get information in a different manner. Other business records … [There’s] not something that I can think of that replaces that gap.”

Privacy advocates say there are plenty of options should the Patriot Act provisions lapse and intelligence agency power reverts to what it was in October of 2001, before Congress authorized bulk data collection. Intelligence agencies would be limited in what they could collect, and would face greater barriers to obtaining it.

“It’s just a much more restrictive standard that the government has to meet to collect information,” Neema Singh Guliani, a Washington-based legislative counsel for the ACLU who works on NSA issues, told HuffPost earlier this week. “Instead of this 'relevance' standard, they have to demonstrate [the target] is an agent of a foreign power.”

The administration officials’ comments Wednesday preview an expected fight to the death Sunday in Congress over the Patriot Act provisions that serve as the backbone of the bulk data collection program publicly revealed by former NSA contractor Edward Snowden in 2013. The program collects the communication data of Americans, including the time and length of phone calls, the numbers dialed, and time, recipients, and subject line of emails.

Even after intelligence agencies begin powering down the program on Sunday afternoon, it could be revived if Congress acts swiftly, the officials said.

“We start the shutdown at 4 o’clock, and from 4 up to 8 o’clock, I could say, 'Wait, don’t jump off that cliff,'” the first official said.

Officials said Wednesday they will simply shut down, not wipe, the servers that hold the programs’ data.

The government has not sought to extend a secret court order compelling telecommunications companies to turn over the massive data troves. That court order expires Sunday at midnight; the deadline to ask for an extension was May 22.

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