Congress faces a big task this month trying to decide the fate of the controversial Section 215 program, which allows the NSA to collect huge amounts of phone records. So what exactly are its options?
A debate over privacy policy became more complex last week when the first of three U.S. District Appeals Court rulings on Section 215 came down on Thursday.
The bulk telephone records program collects what is called metadata—call length and number dialed, for example, rather than the substance of the calls themselves. The NSA then analyzes links between callers in order to discern terrorist activity, tracing callers up to two “hops” or phone calls away from the original number.
The Second Circuit, based in New York, said that the current use of the program by the Obama administration was beyond the scope intended by the law. (The three-judge panel didn’t rule on its constitutionality in general.)
“In adopting § 215, Congress intended to give the government, on the approval of the FISC, broad‐ ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior,” the Second Circuit said. FISC, or the Foreign Intelligence Surveillance Court, instead, gave the NSA blanket permission to collect phone records in bulk, while Congress had intended the process to be more like the subpoena-based process Americans are familiar with under the Constitution.
Commentators quickly noted that while the Second Circuit opinion is important, the District of Columbia Circuit Court and the Ninth Circuit Court will soon have their own opinions The D.C. Circuit heard its case on November 4, 2014, and the Ninth Circuit heard arguments on December 9, 2014.
Back in March, George Washington’s Orin Kerr spoke on the blog Lawfare about what would happen if the Second Circuit ruled before the June 1 deadline in Congress to renew, modify or end the Section 215 program.
“A ruling by the Second Circuit rejecting the statutory basis of the program, just weeks before the program sunsets, would be a big deal,” Kerr said. “And as a practical matter, Congress would probably have to assume the correctness of the Second Circuit’s statutory interpretation if the votes are there for some kind of compromise legislation that retains some aspects of the program.”
On the surface, the court ruling impacts at least two of three options before Congress. There is one camp that wants a new law, the USA Freedom Act, likely to approved by the House. The act modifies greatly bulk collection efforts. But it retains some Section 215-like elements. House Speaker John Boehner is leading this effort.
His Senate counterpart, Mitch McConnell, wants the current Patriot Act with Section 215 extended. “Put differently, Section 215 helped us find the needle in a haystack, but under the USA Freedom Act, there may not be a haystack to look through at all,” McConnell said last Thursday. And still others in Congress want Section 215 to go away forever.
The problem now facing Congress is that it has 10 legislative days to find a compromise with three different factions, that cross party lines, needing to agree on a delay, an extension or a new law. And if Congress delays action, there are the two potential Circuit Court opinions in play.
For example, if one of these two courts conflicts with the Second Circuit or rules the program unconstitutional, then the Supreme Court comes into play if elements of the current Section 215 remain in a new law.
As of Monday, Section 215’s fate seems very problematic. Amie Stepanovich from the digital rights group Access told The Hill that a lot of people in Washington were guessing. “Everybody’s kind of crystal balling it at this point,” she said.
