US surveillance provisions in limbo

Section 215 of the Patriot Act has expired.

For the first time since the 2001 terrorist attacks in New York and Washington, the American government faces major limitations on its ability to sweep up and sift through the call records of all US residents in search of potential terror plots.

The US Senate held an emergency session on Sunday in a last-ditch attempt to break a week of political gridlock. There were three options on the table: Pass reforms under the USA Freedom Act, extend the Patriot Act unchanged or let Section 215 expire altogether.

Under the pressure of a midnight deadline, 77 senators supported moving the USA Freedom Act to a final vote. Some genuinely wanted to end the government's bulk collection program. Others thought voting for the bill's limitations would be better than letting Section 215 expire altogether.

But for one senator, the reforms didn't go far enough. Rand Paul, the Republican libertarian presidential candidate from Kentucky, issued an objection. The procedural move delayed a final vote beyond Section 215's expiration date.

"While the sunset of Section 215 definitely demonstrates the strength of and the desire for strong privacy reform, the fact is that this isn't the only section of the Patriot Act that the government could use, and in fact has used, for bulk collection," Jake Laperruque, with the Center for Democracy & Technology, told DW.

Bulk collection still possible

According to Laperruque, the US government has used pen registers and trap-and-trace devices to conduct bulk surveillance in the past. Under these two techniques, the metadata of outgoing and incoming calls on a phone are captured, but not the content.

There are also national security letters. The Federal Bureau of Investigation (FBI) issues these letters in secret to obtain the personal records of US citizens and residents, including their telephone metadata. Over 300,000 such letters have been issued over the past decade.

"Nothing changes with respect to national security letters because they're not expiring," Liza Goitein, with the Brennan Center for Justice, told DW. "Nothing changes with pen register track and trace because they're not expiring."

"In theory the government could simply shift bulk collection over to those authorities," she added.

The USA Freedom Act would have limited the government's ability to conduct bulk collection under pen trap and trace and national security letters.

"We definitely believe US citizens would be safer from bulk collection and government surveillance under USA Freedom than a sunset of Sec 215," Laperruque said.

Exemption for ongoing investigations

For ongoing investigations that began before Section 215's midnight expiration, the government can actually still use the bulk collection program. But the Obama administration notified Congress that it would shut down the program by the June 1 deadline.

The White House supports passage of the USA Freedom Act, which would transfer Americans' call records from the National Security Agency's database back to the telecommunication companies.

The authorities would then have to get permission from a secret intelligence court to use a specific selector term to search the telecoms' databases. A selector can include a person's name, telephone number, address or personal device.

"But it also says you can't have something overly broad like a geographic area - a state or a city or a zip code," Laperruque said. "You can't have something like an entire telephone company or remote computing service."

Security concerns

For those who support broader surveillance authorities, allowing the bulk collection of call records to expire under Section 215 presents security concerns. According to Cully Stimson, Congress should keep some version of the program in place, even if it's more limited in scope.

"We should not throw away a valuable tool," Stimson, an expert on national security law at the Heritage Foundation who coordinated the Bush administration's global detention policy and operations, told DW. "Especially as terrorist attacks are on the rise, as more and more Westerners - not only Americans but Western Europeans - have flocked to ISIS to seek training and carry out their own jihad," said Stimson, using another name for the "Islamic State" (IS) militant group.

But Goitein with the Brennan Center points to a Justice Department report which found that not a single terrorist attack had been directly foiled by Section 215. In addition to bulk collection, Section 215 also includes the roving wiretap and "lone wolf" provision.

Roving wiretaps allow authorities to target individuals who frequently change their mobile phones. The lone wolf provision allows the government to conduct surveillance of an individual who might be inspired by but is not actually affiliated with a terrorist organization or foreign power.

"We've never used the lone wolf provision," Goitein said. "It's literally never been used."

USA Freedom in limbo

Though Senator Paul managed to hold up the USA Freedom Act and allow Section 215 to expire, even he acknowledged that the bipartisan reform bill is likely to pass at some point.

If the Senate decides to amend USA Freedom, the process could become even more drawn out, because the House of Representatives would then have to again vote on the legislation.

Privacy advocates and surveillance hawks, though normally on different sides of the issues, both agree that the state of limbo is risky. While civil libertarians are concerned that several surveillance authorities will remain unreformed in the interim, the hawks are worried that law enforcement and intelligence agencies can no longer rely on a call records program, even if that's more limited.

For non-US persons living overseas, the debate is academic. The US government conducts most of its foreign surveillance operations under a separate law, Section 702 of the FISA Amendments Act. And that law doesn't expire until 2017.

"The reason why there was a strong impetus for change on this program [Section 215] is because its impact was domestic, it had such a clear affect on Americans," Goitein said. "It's going to be more of an uphill battle to change the programs that are nominally targeted at foreigners."