Don’t Worry, the Government Still Has Plenty of Surveillance Power If Section 215 Sunsets

The story being spun by the defenders of Section 215 of the Patriot Act and the Obama Administration is that if the law sunsets entirely, the government will lose critical surveillance capabilities. The fearmongering includes President Obama, who said: “heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or could’ve apprehended someone who was engaged in dangerous activity but we didn’t do so.”

So how real is this concern? Not very. Section 215 is only one of a number of largely overlapping surveillance authorities, and the loss of the current version of the law will leave the government with a range of tools that is still incredibly powerful.

First, there’s the most famous use of Section 215—the bulk collection of telephone records by the NSA. Of course, no matter what law the government relies on, bulk surveillance is unconstitutional. But equally importantly, it doesn’t work. Every assessment about the bulk collection of telephone records, including two by hand-picked administration panels, have concluded that “collecting it all” hasn’t materially aided any terrorism investigation. The same goes for other still-secret bulk surveillance programs under Section 215, the latest evidence of which came in a recently released oversight report by the Justice Department’s Office of the Inspector General (OIG).

And then there’s the matter of targeted investigations. The ACLU’s Jameel Jaffer has explained that this too is scaremongering, because “the sunset of Section 215 wouldn’t affect the government’s ability to conduct targeted investigations of terrorist threats.”  That’s because even without Section 215, the government still has broad powers to collect information during its national security investigations. EFF believes that many of these laws can be scaled back and made more transparent as well, but given the current situation, these are the tools in the national security investigators’ toolbox: 

·      Pen Registers: These allow the government to collect “dialing, routing, addressing, or signaling information” including telephone numbers dialed and Internet metadata such as IP addresses and email headers. There are two pen register statutes, one for foreign intelligence surveillance and one for law enforcement. Both rely require only that the pen register be likely to obtain information relevant to a national security or criminal investigation respectively. Until the end of 2011, the NSA used the Foreign Intelligence Surveillance Act (FISA) pen register statute to conduct mass surveillance of Internet metadata, much as it still uses Section 215 for mass collection of telephone records.

·      The Pre-Patriot Act Business Records Provision: Before the passage of the Patriot Act in 2001, FISA contained a provision allowing the government to obtain business records from transportation carriers and storage facilities. Harley Geiger of the Center for Democracy and Technology has pointed out that under a June 1 sunset, FISA would simply revert to this provision.

·      An ECPA “D Order”: Under Section 2703(d) of the Electronic Communications Privacy Act (ECPA), the government can get a court order for information from ISPs or other communications providers about their customers, including the sorts of metadata the government gets with Section 215. To get a D Order, the government must provide “specific and articulable facts showing that there are reasonable grounds to believe that . . .  the records or other information sought, are relevant and material to an ongoing criminal investigation.”  

·      Grand Jury Subpoenas: Given that Section 215 explicitly says that the FISA Court (FISC) “may only require the production of a tangible thing if such thing can be obtained” with a grand jury subpoena, it’s apparent that a grand jury subpoena is a reasonable substitute, at least where a grand jury can be convened.

·      National Security Letters (NSLs): Similar to subpoenas, NSLs allow intelligence agencies to collect records from a range of entities including telecommunications providers, financial institutions, credit reporting bureaus, travel agencies and others. Nearly all NSLs include self-certified gag orders, which EFF has successfully challenged as unconstitutional. Nevertheless, the FBI and other agencies can use NSLs to collect much the same information as Section 215, although the government has also misused NSLs to obtain communication records not authorized by the NSL statute.

·      Administrative Subpoenas: Many federal agencies have the authority to issue subpoenas for customer records in their normal course of business. These authorities are extremely widespread, comprising 335 different statutes by one count.  

·      FISA Warrants: Under FISA, the government can get warrants from the FISC for electronic surveillance and physical searches in the context of national security investigations. Although these require a higher showing—probable cause—statistics compiled by EPIC show the FISC routinely issues them, and has done so since FISA was passed in 1978.

Some of these laws involve different legal standards than Section 215, and not all of them apply in all contexts, although exactly how the government thinks it can use many of them remains unclear. Moreover, mapping these to the government’s actual use of 215 is imprecise because the government also continues to say that the types of information it obtains with Section 215 are classified. FBI Director James Comey claims the loss of Section 215 would be a “problem” because at least some of this information can’t be obtained with a subpoena or an NSL but hasn’t given any examples. And taken together the government’s tools are formidable, making it difficult to see legitimate, targeted national security information that the government cannot get even without the current version of Section 215, a conclusion confirmed by the Inspector General report that as of 2009 it could not “identify any major case developments from the records obtained in response to Section 215 orders.”

Finally, looking beyond Section 215, two other powers would also expire with the Patriot Act sunset. First is the so-called lone wolf provision that the government has never used. Not once.  The second is the “roving wiretaps” provision that had been used only 11 times as of 2013 and for which the government has issued no stories of its actual usefulness in a terrorism investigation. Meanwhile, EFF unearthed evidence that this provision had been misused back in 2011. So it seems there’s little there too. 

In short, don’t believe the hype that the government will have its hands tied behind its back without Section 215.