Window to debate surveillance policy is closing

In two months, unless Congress acts, Section 215 of the Patriot Act will expire. The NSA has used this provision to indiscriminately collect Americans’ calling records (including the date, time, and duration of calls, but not the content of the conversations). Practically, the deadline is May 22 with Congress scheduled to head out of town for Memorial Day. Nearly two years ago, Edward Snowden’s unauthorized disclosures to the public’s surprise, revealed this bulk collection program along with the government’s broad and secret interpretation of Section 215. This was expected to trigger a vigorous debate in Congress over the appropriate scope of the government’s surveillance efforts. Yet, reform legislation, the USA FREEDOM Act, which was considered last year, has yet to even be reintroduced in this Congress.

When the Privacy and Civil Liberties Oversight Board (PCLOB) reviewed the Section 215 program last year, it concluded that Section 215 did not provide an adequate legal basis to support bulk collection. The use of this provision was especially troubling because even a close reading of the statute would not have revealed to the public that it was authorizing the ongoing collection of millions of Americans’ phone records. PCLOB concluded: “[W]e do not believe that the process surrounding the application of Section 215 to bulk collection comported with the kind of public debate that best serves the development of policy affecting the rights of Americans.” Transparency is critical to a functioning democracy, especially for laws that require Congress to balance national security with individual privacy and civil liberties. 

{mosads}President Obama promised to modify the Section 215 program and called for an end to bulk collection. But legislative efforts to reform Section 215 stalled in the Senate last fall. This year, there has been little serious effort in the House or Senate to take up the issue. And bulk collection of call records continues to this day.

If Congress does not promptly begin a serious debate on the future of Section 215, they will be scrambling for a quick fix at the end of May and the American people will end up with one of three bad options. 

First, when faced with losing Section 215, which authorizes targeted government surveillance activities beyond the bulk collection of telephone records, Congress might just renew or extend Section 215 on the eve of its expiration. This would result in the continuation of the bulk collection program that an unusual coalition of the intelligence community, tech firms and privacy advocates agrees should be ended in its current form. Even worse, such a renewal could be viewed as ratifying an interpretation of the statute that would permit such bulk collection. 

Second, Congress could let Section 215 expire. The expiration of Section 215 would deprive the government of legitimate law enforcement authorities, not just the bulk metadata program. 

Third, Congress could hastily pass a bill to reform or replace Section 215. Without a robust drafting process and public debate, this sort of legislation, would likely have legal and practical implications that neither Congress nor the public would fully understand until they were too late to fix. Experience with Section 215 tells us that when Congress legislates in the dark, bad policy follows. 

If Congress acts now, the American people and their representatives can undertake the public debate that is necessary to craft a new and sensible law that ends the telephony metadata bulk collection program but permits the government to collect the same information – but on a case-by-case basis from the telephone companies – with far less infringement of privacy and civil liberties. It would be a shame for Congress to squander the opportunity to apply a strong dose of democracy to our country’s surveillance efforts. 

Medine is the chairman of the Privacy and Civil Liberties Oversight Board,.an independent agency within the executive branch of the U.S.  government.