March 5th, 2015

Future of NSA Phone Surveillance Program Remains Unclear

By: Matt Daly-Grafstein

Last week the Foreign Intelligence Surveillance Court (FISC) extended a mandate for the operation of the NSA’s phone surveillance program until June 1st after receiving a specific request from the Obama administration. At issue remains certain provisions of the Patriot Act, including section 215 which grants the NSA extremely broad access to a variety of civilian records under the Foreign Intelligence Surveillance Act (FISA). If the June 1st deadline passes and Congress takes no further action, then the NSA will ostensibly lose the legal authority to continue mining American phone records.

Currently it appears that Congress has no plans in place to allow the continuation of the NSA’s operations. Several bills have been previously introduced to the previous Congress in an attempt to reform how the NSA goes about its collection of American phone records but none were ultimately passed. The USA Freedom Act, introduced this past November, by Dem. Sen. Patrick Leahy, came the closest but fell a mere two votes shorts of advancing. There are no bills that have been introduced in the current Congress that address the issue.

Critics are worried that the lack of action by Congress may be evidence that a last-minute bill will be rushed through that will grant the same broad powers that were given under the much maligned Patriot Act. The same type of debate surrounding the failed USA Freedom Act that led many to believe that it reflected a true bipartisan effort may not be possible given the less than 100 days until the expiration of the current laws. This past year Obama had proposed that data should remain with telephone companies and that the government should only be able to access data through specific individual court orders, a proposal that may have more favorable support from critics of the current government surveillance programs. No legislation to date however has incorporated this suggestion.

The short window remaining to pass new legislation may also mean that Congress simply lets Section 215 and its related provisions expire. This would legally end the ability for the NSA to continue its current efforts in gathering bulk phone data. While it’s unclear the true efficacy of the program given the unwillingness of the NSA to share detailed data about its operations it’s enough for some in Congress and the intelligence community to worry that the vacuum created may mean that the USA will be less effective in preventing future terrorist operations within the country. In any case, we should know for certain the future of the NSA surveillance program within the next few months.