Last night, the Senate delivered a stunning rebuke to the NSA and the other surveillance agencies. By refusing to act, they in effect voted to allow parts of the PATRIOT Act to expire, on which the FBI and NSA (illegally) rely to conduct mass metadata dragnets on Americans. This is an abhorrent outcome to national-security authoritarians, but they played their part in making it more likely to happen. This is a partial story of how it came about.
Section 215 of the PATRIOT Act, the so-called “business records” provision, dates from immediately after 9/11. It has been used since then, without the knowledge or consent of most of Congress, to justify mass metadata dragnets, including a phone metadata dragnet proven to exist by documents leaked by Edward Snowden in 2013. These metadata dragnets under Section 215 are a small part of the NSA’s overall surveillance activities; Internet and other content dragnets, which take in all the communications of whole countries and also “incidentally” include the communications of millions of Americans, were justified under other provisions of law, and so will continue.
Last fall, the USA FREEDOM Act of 2014 failed to pass in the Senate, which was deeply disappointing many surveillance activists who had worked hard for it. The reaction of some – notably CDT, OTI and Access – was to roll up their sleeves, try again in the new Congress, and work out a text that they and interested legislators and the intelligence community and the administration could come to agreement on. They reintroduced the USA FREEDOM Act of 2015 in March. It was on balance a weaker reform than the 2014 bill, reflecting a Congressional leadership that was more sympathetic to the NSA. It included, among other new measures, increased sentences for material support for terrorism. It passed the House on May 13, by 338 votes to 88. The 88 who voted against it were almost all surveillance reformers, and the more authoritarian members voted for it.
Why was that? Well, the USA FREEDOM Act, despite being touted in the press as reform, was never especially popular in the surveillance reform community. It would have reformed Section 215, but in a token way whose practical effects on actual NSA data-gathering on the ground were likely to be minimal. It would also have reauthorized it for several years, which made long-time principled opponents of the PATRIOT Act very uncomfortable. For that reason, after the bill failed in fall 2014, some organizations coalesced around a different strategy called “Sunset215.” The core groups – X-Labs, the Sunlight Foundation and Restore The Fourth, BORDC, PCCC, FreedomWorks, the Cato Institute and the Campaign for Liberty – adopted a name, the “Civil Liberties Coalition”, and our coalition steadily expanded to include a huge array of organizations from both left and right. Our strategy was to get reintroduced, with bipartisan support, the much stronger Surveillance State Repeal Act, which would show what reforms were needed; and to focus not on reforming Section 215, but on having it lapse on schedule at midnight on May 31.
Remarkably, despite the conventional wisdom six months ago that a sunset would never happen, that looks now to be by far the most likely outcome.
Part of what happened here was that the 2nd Circuit Court of Appeals ruled on May 14 that Section 215 had never authorized mass metadata dragnets. If reauthorized unchanged, the unanimous opinion said, the programs would end; if Congress wanted the programs to continue, they would have to change Section 215 to authorize them explicitly. This ruling changed the calculus for the administration and the intelligence community. It now looked as if the best option was not Senator McConnell’s preferred strategy of straight reauthorization without change or reform. Instead, they started to advocate adoption of the USA FREEDOM Act – with, in the end, even the CIA weighing in in support of it. There would be token reforms, but USA FREEDOM would provide stronger Congressional authorization for mass surveillance than the existing text of Section 215. It appears that this pressure had an effect, reducing support in the Senate for straight reauthorization, and nearly unifying the Democratic caucus in the Senate around the USA FREEDOM Act.
At the same time, our Civil Liberties Coalition was working hard generating hundreds of thousands of calls to Congress, and building the credibility of the argument for letting Section 215 lapse. We tapped into a deep sense of unease in the country with the whole project of mass surveillance – a sense that after 9/11 we had, as a country, gone off track, and needed to get right with the Constitution. That in turn gave anti-surveillance legislators – like Mark Pocan and Thomas Massie in the House, and Rand Paul in the Senate – the support they needed for a strong stand on this issue.
The Senate has been headed for a recess that would last until June 1, after the PATRIOT Act provisions expire. Last night, after midnight, these provisions finally came up for a Senate vote. McConnell placed the USA FREEDOM Act first on the agenda. 42 Senators voted against cloture. That 42 represented the more authoritarian Republicans in their 55-strong caucus, for whom even token reform was intolerable – and also Senator Paul, who, like the 88 in the House, felt that USA FREEDOM didn’t go far enough. 12 reformist Republicans voted for cloture, but that wasn’t enough; the final vote count was 57 in favor, and they needed 60.
So far, McConnell’s plan was working; his idea was that with USA FREEDOM out of the way, the Senate would agree to a two-month reauthorization of Section 215 in order to get home to their districts for the recess, and then he could lean on the House to ensure that any reforms were as empty as possible. But then his reauthorization vote also failed, by the substantial margin of 45 votes for to 54 votes against. The Democrats and several reformist Republicans voted No.
That’s when things went awry for the surveillance defenders.
Desperately, McConnell offered shorter and shorter renewals, only to have them blocked by objections from Senator Rand Paul and others. In the end, the only thing he could control was the Senate calendar, so he called for the Senate to reconvene at 5pm on May 31, to give them another chance to prevent the sunset of these PATRIOT Act authorities.
There is only one, remote possibility that will prevent sunset now. If McConnell throws his support behind the USA FREEDOM Act, and finds a few surveillance opponents willing to hold their noses to vote for it, then the Senate and House and White House will have all come to agreement before a sunset occurs. There would be a technical lapse of less than a day, owing to procedural limitations, but the legislative avenues to prevent lapse would have been successfully closed off. However, McConnell has spent months arguing that the USA FREEDOM Act is dangerous and unpatriotic. So we will see next week how unscrupulous, exactly, he is prepared to be.
Even now, some press outlets are misunderstanding what happened last night as a failure for surveillance reformers. It was nothing of the sort. The lapse of Section 215 is far more reform than most people could imagine happening six months ago. But last night, the billion-dollar three-letter agencies got a whipping from a few motivated legislators and a raggle-taggle band of civil liberties true believers. It’s an incredible story.
—10:00pm EST: UPDATED to more clearly explain what happens if USA FREEDOM passes.
by Alex Marthews, National Chair
The House just voted to pass the USA FREEDOM Act, which reauthorizes and alters Section 215 of the PATRIOT Act, with a vote of 338 to 88. It’s being depicted as a landslide in favor of reform. It is, sadly, anything but. This is why.
Last week’s ruling by the 2nd Circuit fundamentally changed the Congressional debate. Senator McConnell, the Majority Leader, had been pushing for a straight reauthorization of Section 215 of the PATRIOT Act. But the 2nd Circuit ruling said, among much else, that if Congress did a straight reauthorization of the same language, then their ruling that mass metadata surveillance was unlawful would still stand. In other words, straight reauthorization will no longer get surveillance defenders what they want. So, as the next best thing, the administration and the intelligence committees swung behind the USA FREEDOM Act. This Act would impose token limits on how much they can collect with a single request, but would modernize intelligence collection for a world where much communication is not an actual phone call. As a compromise between moderate surveillance reformers and the intelligence community, it actually offers a lot that the intelligence community likes. So it looks much better to them at this point than straight reauthorization (=no mass metadata surveillance under Section 215) or straight sunset (=no mass metadata surveillance under Section 215).
How do we know this happened? We can measure it.
EFF came out last year with a congressional scorecard, grading Representatives on their approach to mass surveillance. Looking at how those Reps voted this time, we can see that the mean grade of those voting for USA FREEDOM was a C. The mean grade of those voting against USA FREEDOM was an A- (full data here). Probably 115 reform-minded Congressmembers felt that USA FREEDOM was enough of a positive step that they voted for it. But the pattern is clear:
Most Yes votes were from surveillance supporters, and the vast majority of No votes were from reformers.
It’s therefore inaccurate for the New York Times and other outlets to depict this as an enthusiastic repudiation of mass surveillance, when in practice USA FREEDOM is emerging as the least-worst alternative for mass surveillance supporters.
Does this mean that Sens. McConnell and Burr, last seen desperately pushing for a straight short-term reauthorization of Section 215, would actually see their agenda advanced better if the USA FREEDOM Act passed? It’s quite possible that they don’t fully grasp the ramifications of a straight reauthorization in the context of the 2nd Circuit ruling. But if they don’t grasp it, the administration and the intelligence community do seem to, and, it appears, pressured Reps to vote accordingly.
Last Thursday’s 2nd Circuit Court of Appeals ruling in ACLU v. Clapper threw a bomb into the middle of the debate over renewing the legal authority governing the NSA’s mass metadata surveillance programs. In a unanimous ruling, the Justices held that such programs, untethered to the limiting factor of what is relevant to a specific investigation, were never authorized under Section 215 of the PATRIOT Act.
Bob Litt, the general counsel of the Office of the Director of National Intelligence, scrambled to respond, arguing at a panel on transparency in DC on May 8 that the ruling is not binding on the FISC, that it is not currently in effect, and that it will be overturned soon anyway. Senate Intelligence Committee Chairman Richard Burr (R-NC), who vehemently supports mass NSA surveillance, is contending that “I think the statutory language today allows the NSA to do exactly what they’re doing […] I have a very tough time thinking the Supreme Court would look at this law […] and come to the conclusion that we didn’t empower the NSA to do bulk collection.” In the same article, Stewart Baker, the former general counsel for the NSA, is reported as deriding the ruling as a “97-page law review article” whose “significance is close to zero.”
Collectively, these assertions are the public face of what’s nothing less than a desperate effort by the NSA to declare itself literally above the law. But let’s take them one at a time, shall we?
- Does a ruling by a Court of Appeals override the interpretation by a FISC judge that mass metadata surveillance is authorized by Section 215 of the PATRIOT Act?
The law setting up the Foreign Intelligence Surveillance Court, or FISC, is the Foreign Intelligence Surveillance Act of 1978. § 106 of that Act specifies that “decisions under this section that electronic surveillance was not lawfully authorized or conducted … shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.”
Decisions “under this section” as to the lawfulness or otherwise of surveillance, are decisions taken by the FISC. Such decisions are stated to be binding on all courts, except a United States Court of Appeals and the Supreme Court. If FISC decisions bind all courts except Courts of Appeals and the Supreme Court, then by definition decisions by the Courts of Appeals and the Supreme Court must bind the FISC. So Bob Litt is either not familiar enough with FISA, or is purposely misstating the law.
- Does the 2nd Circuit Court’s ruling coming into effect depend on a further ruling by the Supreme Court?
The 2nd Circuit stayed their ruling, and remanded to the district court the question of whether the program would continue, simply because Congress is currently actively considering what to do with § 215. But they also gave guidance to the district court on how to react to Congress:
[T]he statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame. If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization. There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches […] If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised. If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end…”
The Court envisions three possible outcomes here, other than a simple lapse of § 215.
(A) Congress may choose to pass a revised Section 215, which explicitly authorizes mass metadata collection. This would be politically unpalatable in exact proportion to the explicitness of the authorization. If that happens, then the appellants could still receive relief for their past injury from an unlawful program, and the constitutional issues the Court did not reach would still remain alive.
(B) Congress may, as Senator Burr has been pushing for, reauthorize Section 215 as is; but Senator Burr’s personal belief that that will still mean the mass metadata surveillance programs are lawful and authorized, is of much less weight than the 2nd Circuit’s statement here that “if Congress reenacts § 215 without expanding it to authorize the telephone metadata program, […] the program will end.” Burr cannot, in other words, make the current § 215 say what a Court of Appeals has determined that it does not say.
(C) Congress may authorize a substantially reformed metadata surveillance program, conforming to the ruling, in which case that would raise “constitutional issues” that will “certainly differ considerably from those currently raised”, presumably mooting this ruling.
So, whether or not this ruling is mooted is dependent not on the Supreme Court, but on the choices Congress makes. The USA FREEDOM Act has now passed the House, and enjoys substantial, though possibly not sufficient, support in the Senate. If it passes unchanged, it’s probably not very compatible with the 2nd Circuit Court ruling, because it regulates mass metadata surveillance by limiting it to specific selection terms rather than by analogizing it to a grand jury subpoena process, and by allowing two “hops” of data collection from a target rather than a more-likely-conforming one hop. The district court would, if it passes, have a difficult task before it. Congress would have weighed in with a brand-new scheme that is in some ways looser than what the 2nd Circuit wants; but to rule that scheme incompatible with the 2nd Circuit would be interpreted as activist. It’s more politically likely that the district court would order relief for past unlawful surveillance and allow the new scheme time to come into being, allowing future lawsuits to be brought only when further injury is identified under that new scheme.
It’s for precisely these kinds of reasons that we continue to strongly oppose the passage of the USA FREEDOM Act. Allowing § 215 to lapse would much more clearly undercut mass metadata surveillance. The ruling also makes explicit that the preferred strategy of Senator Burr, trying to reauthorize § 215 as is, will not reauthorize the mass metadata surveillance programs and will not moot this ruling, whether it’s a short or a long-term extension. Instead, in the context of a straight reauthorization, the district court would then award relief to the appellants for their past injury, and order the end of the program as required by the 2nd Circuit ruling.
- Is it likely that the Supreme Court will overrule the 2nd Circuit?
The Supreme Court exists primarily to resolve “circuit splits” – differences in interpretation of federal statutes or the Constitution among the eleven Courts of Appeals.
There’s no split yet.
Since the 2nd Circuit binds the FISC, there’s no split between courts of equal authority immediately underneath the Supreme Court. There are two lawsuits where rulings are pending that relate to the government’s mass metadata surveillance programs. Of these two, the 9th Circuit is more likely to agree than disagree with the 2nd Circuit, and the DC Circuit, while likely to rule that mass metadata surveillance is constitutional, is unlikely to rule on the question of whether Section 215 authorizes mass metadata surveillance. Noted surveillance apologist Ben Wittes reluctantly makes this point here. So unless the DC Circuit goes beyond its remit, there will be no circuit split that would enable the Supreme Court to intervene.
Of course, the government could – and likely will – attempt to get the 2nd Circuit to rehear this case en banc. But the ruling was a unanimous one, and solely on statutory grounds – the court didn’t reach the question of whether mass metadata surveillance conflicted with the Fourth Amendment. It’s therefore very unlikely that the 2nd Circuit will grant such a rehearing.
All this means that, if the USA FREEDOM Act does not pass in some form, the 2nd Circuit ruling would until the next Supreme Court session in the fall, and probably till the term after that, be the last word on the legality of the government’s mass metadata surveillance programs. Congress cannot countenance the operation of illegal programs in the interim, in the hope that one day the Supreme Court will accept a writ of certiorari to resolve an as-yet-nonexistent circuit split. To do so would, as I note above, allow the NSA to operate above the law.
So, to sum up, Bob Litt, Senator Burr, and Stewart Baker are wrong. The ruling in ACLU v. Clapper is much more than a “97-page law review article” of “close to zero significance.” It is now, and will be for at least a year, the controlling law relating to mass metadata surveillance, unless Congress chooses explicitly to authorize such programs in the interim. Anyone who advises Congress simply to disregard the ruling is advocating gross disrespect for the law. No member of Congress should kid themselves otherwise.
by Alex Marthews, National Chair
When last week began, Senate Majority Leader Mitch McConnell (R-KY) was pushing hard for controversial provisions of the PATRIOT Act, due to expire June 1, to be renewed for more than five years without any changes or reform. He had the backing of Senator Richard Burr (R-NC), the chair of the Senate Intelligence Committee. He had the support of the intelligence community. But then things started to go wrong.
One of these provisions, Section 215, had been interpreted in secret by the intelligence community to authorize mass metadata surveillance untethered to any particular criminal investigation. The argument was that they had to collect the whole in order to understand patterns of communications and get to the terrorists they were after. Then, last Thursday, the Second Circuit Court of Appeals—one step below the Supreme Court—issued a stinging, unanimous ruling in a lawsuit brought by the ACLU that this argument was wrong, and that Section 215 had not authorized mass metadata collection at all. Congress, the Court said, had never explicitly and knowingly approved mass metadata surveillance programs, and if Congress wanted such programs to continue (see page 96), they would have to write that explicitly into the law.
This put McConnell in a bind. He’d been arguing for renewal of these authorities because he wanted mass metadata surveillance to continue. Now, if Section 215 gets renewed unchanged, these programs will not continue. So he needs to change tack, fast, rather than continuing to push for clean reauthorization.
After this ruling, there’s only one realistic vehicle that would continue the mass metadata collection programs (with some limits and added transparency) rather than getting rid of them entirely. So the White House, the intelligence community, and even some national security conservatives—but so far not McConnell—are swinging behind using the USA FREEDOM Act, which is expected to pass the House today.
What would the USA FREEDOM Act do? The press has generally misunderstood this bill as the bill surveillance reformers want. In reality, it’s already a delicately negotiated compromise between some reform-minded legislators and the intelligence community, with very little support from civil liberties groups. The biggest group that was working on it, the Electronic Frontier Foundation, has just pulled its support, because now the Second Circuit has ruled, USA FREEDOM’s remaining reforms look very small. USA FREEDOM would never have accomplished any of the reforms outlined in this letter supporting stronger reforms.
Call your Senator. Let them know that neither the USA FREEDOM Act nor Mr. McConnell’s renewal bill are what we need. We need Section 215 to lapse, and to consider stronger reforms like our own Surveillance State Repeal Act or Rep. Lofgren’s End Warrantless Surveillance Act. Above all, we don’t want them to be tricked into thinking that something represents reform just because it bears the label “USA FREEDOM”. We’ve been down that road before, with the unpatriotic PATRIOT Act. We won’t get fooled again.