As Future of NSA Surveillance Grows Murky, New Report Shows Section 215 Not Exactly Vital

Senate vote expected today, but on what, exactly?


For the sake of variety, here's a nighttime shot of NSA headquarters.
Credit: Trevor Paglen

Among the many arguments presented in opposition to allowing the federal government collecting mass amounts of data from people who aren't even suspected of terrorism (besides the Fourth Amendment violations) is that: one, it hasn't actually helped stop any terrorist plots; and two, we can't trust a massive federal bureaucracy to subsequently dispose of information it gathers unrelated to any cases its working on.

Sure enough, right after Sen. Rand Paul (R-Ky.) finished his filibuster calling for an end of mass metadata collection under Section 215 of the PATRIOT Act (as well as metadata collection via other authorizations), a newly released inspector general's report bolsters those arguments. The FBI dragged its feet for years in creating specific "minimization" procedures, ways by which they made sure they protected private, unrelated data from being accessed or retained. And despite claiming Section 215 was such a valuable tool, there was no evidence that the mass metadata collection led to any "major case developments." The Washington Post has more from the report (which, it should be pointed out, was also heavily redacted):

The report stressed that rapid advances in technology are broadening the scope of materials sought using Section 215. They range from "hard copy reproductions of business ledgers and receipts to gigabytes of metadata and other electronic information," the report said.

"While the expanded scope of these requests can be important uses of Section 215 authority, we believe these expanded uses require continued significant oversight" by the courts, the Justice Department and Congress, the report said.

Something that sometimes gets lost in the shuffle is that Section 215 is about a whole lot more than just telephone metadata collection. It is any record. Any "tangible thing." If Section 215 is interpreted to allow bulk collection of all domestic telephone records, than the same could hold true for pretty much any record held by a third party, like medical records, education records, and credit card records. This is a problem pointed out when the 2nd Circuit Court recently ruled that Section 215 never authorized bulk data collection in the first place.

Where we stand right now post-filibuster is that the Senate is going to be voting on something related to the Section 215 surveillance today. Senate Majority Leader Mitch McConnell has agreed to allow the USA Freedom Act, which passed in the House, to have a vote in the Senate. But he doesn't think it has the 60 votes to pass there. Not only are there senators who insist they want to keep Section 215 as is (which they can't, but nevertheless…), Paul has made it abundantly clear from his filibuster that he doesn't think the USA Freedom Act is strong enough and wants to open it up to amendments. House members were not permitted to amend the Act before they passed it. If the Senate amends the USA Freedom Act,it would have to be sent back to the House again.

Sen. Richard Burr (R-N.C.), is floating what he's calling a "compromise" that extends Section 215 for up to a month so that he could introduce a different bill to end bulk metadata collection that gives the National Security Agency two whole years to transition out of the process, instead of the six months allowed in the USA Freedom Act. Read more about his proposal here.

The White House is pushing for a clean vote on the USA Freedom Act. The House is now out of session until the start of June, which is when Section 215 expires. I think it's pretty safe to say that Section 215 as we see it now is a goner. The debate now is what is going to replace it and how much authority it will give the NSA and FBI to snoop on people.

If you're confused about the USA Freedom Act, you're in good company. Read more about its issues here