House Threatens Legal Basis of NSA Surveillance

Members of both parties in Congress are lining up behind anti-NSA protesters.

The author of the Patriot Act has warned that the legal justification for the NSA’s wholesale domestic surveillance program will disappear next summer if the White House doesn’t restrict the way the NSA uses its power.

Section 215 of the Patriot Act will expire during the summer of 2015 and will not be renewed unless the White House changes the scale of the surveillance programs for which the National Security Administration (NSA) uses the authorization, according to James Sensenbrenner Jr. (R-Wis.), an original author of the Patriot Act and its two reauthorizations, stated Washington insider-news source The Hill.

“Unless Section 215 gets fixed, you, Mr. Cole, and the intelligence community will get absolutely nothing, because I am confident there are not the votes in this Congress to reauthorize it,” Sensenbrenner warned Deputy Attorney General James Cole during the Feb. 4 hearing.

Provisions of Section 215, which allow the NSA to collect metadata about phone calls made within the U.S., give the government a “very useful tool” to track connections among Americans that might be relevant to counterterrorism investigations, Cole told the House Judiciary Committee. The scale of the surveillance and lengths to which the NSA has pushed its limits was a “shock” according to Sensenbrenner, who also wrote the USA Freedom Act, a bill to restrict the scope of both Section 215 and the NSA programs, which has attracted 130 co-sponsors. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sponsored a similar bill in the Senate.

Civil rights groups, including the American Civil Liberties Union, have long opposed the Patriot Act and Section 215 in particular, but strong opposition from both parties in Congress developed only in the wake of scandals sparked by secret NSA documents released by whistleblower Edward Snowden.

“Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities,” according to an ACLU position paper. “This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.”

The review panels appointed by the White House released reports in January that were also critical of Section 215, especially the scope of the programs the NSA justifies under it. The NSA practice of collecting telephone metadata in bulk “raises serious threats to privacy and civil liberties,” “lacks a viable legal foundation,” and has demonstrated only limited value, reads the Jan. 23 report from the Privacy and Civil Liberties Oversight Board (PCLOB).

“Although we continue to believe the program is lawful, we recognize that it has raised significant controversial and legitimate privacy concerns, and as I have said, we are working on developing a new approach as the president has directed,” Cole told the House Judiciary Committee. The White House declined to make most of the changes recommended by either panel, arguing that it is enough to continue the collection programs but have some organization other than the government store and keep control of the records.

Giving those records to a private company could create more privacy problems than it solves, especially considering the recent data breaches at Target and other retailers, Judiciary Committee Chairman Bob Goodlatte (R-Va.) told Cole, according to The Hill.

The Department of Justice is studying the Freedom Act and other legislation with the potential to restrict Section 215, but has not yet taken a position, Cole told the panel.

“I would urge you to hurry up,” Sensenbrenner told him.


Image: Rena Schild