Section 215 of the USA Patriot Act, which authorises bulk collection of phone records, has expired as of 1 June 2015, halting for the time being one of the government’s major tools for mass surveillance.
As EFF notes,
Section 215 now—at least temporarily—reverts to its pre-Patriot Act form, which doesn’t permit any collection of financial or communications records, and requires the Government to provide “specific and articulable facts” supporting a reason to believe that the target is an agent of a foreign power.
Last month, a a three-judge panel in New York ruled that Section 215 does not provide the authority for the bulk collection of domestic phone records.
Journalists, activists and even some politicians widely recognise that Section 215 only became controversial, and therefore subject to reform and expiration, thanks to Edward Snowden’s disclosures of NSA records, generating global debate on the government’s power and how to curb it.
Despite the temporary lapse, the US Senate plans to move forward with a vote this week on the USA Freedom Act, which would move collected phone metadata from government control to that of telecoms.
On 13 May, the US House of Representatives passed the latest version of the USA Freedom Act – the most prominent piece of legislation to have been introduced in the US in the wake of the Snowden revelations. The bill has had a long and complicated legislative history that we have traced over the past two years and it still needs to be approved by the Senate. If passed it would end the bulk collection of domestic phone metadata that was the subject of the very first Snowden revelation.
This chart, taken from an unpublished NSA presentation, illustrates the development of US legal doctrine, both public and secret, on surveillance from 1975 to 2010. The existence of the first of the FISA Court orders, the “Raw Take” order from July 2002, had not been previously known: see the New York Times article How a Court Secretly Evolved, Extending U.S. Spies’ Reach, 12 March 2014.
In the wake of the publication of the Privacy and Civil Liberties Oversight Board (PCLOB) report into the NSA’s collection of domestic phone metadata, a number of voices in the US have echoed the Board’s findings that collection is neither effective nor legal. In the past 48 hours, both the New York Times and the LA Times have published editorials calling for bulk collection to be ended – and even the Republican National Convention has called for an immediate end to “unconstitutional surveillance” and a full investigation into the NSA’s activities.
On Friday 17 January, US President Barack Obama made his long awaited speech on US signals intelligence. The speech came a month after the publication of a report by the Review Group he appointed to look into the issue. At the end of last year, Edward Snowden gave his reaction to the Review Group report in an interview with Fantástico:
“Remember that the advisory group was composed of a hand picked group. Their job wasn’t to protect privacy or to deter abuses, it was to “restore public confidence” in these spying activities. Many of the recommendations they made are cosmetic changes: things that look good but change little.”
Judge William Paley’s opinion and order of 27 December 2013 holds that the NSA’s bulk collection of domestic phone metadata is lawful under Section 215 of the Patriot Act and the Fourth Amendment, granting the government’s motion to dismiss a case brought by the ACLU.
Payley’s ruling in the Southern District of New York conflicts with a recent decision of Judge Richard J. Leon in the District of Columbia, increasing the likelihood that the US Supreme Court will be called upon to adjudicate the issue. The ACLU plans to appeal the ruling to the Second Circuit Court of Appeals: see the ACLU article, ALCU v Clapper – Challenge to NSA Mass Call-Tracking Program, 27 December 2013.