On March 15, 2020, Section 215 of the PATRIOT Act—a surveillance law with a rich history of government overreach and abuse—expired. Along with two other PATRIOT Act provisions, Section 215 lapsed after lawmakers failed to reach an agreement on a broader set of reforms to the Foreign Intelligence Surveillance Act (FISA).
In the week before the law expired, the House of Representatives passed the USA FREEDOM Reauthorization Act, without committee markup or floor amendments, which would have extended Section 215 for three more years, along with some modest reforms.
In order for any bill to become law, the House and Senate must pass an identical bill, and the President must sign it. That didn’t happen with the USA FREEDOM Reauthorization Act. Instead, knowing the vote to proceed with the House’s bill in the Senate without debating amendments was going to fail, Senator McConnell brought a bill to the floor that would extend all the expiring provisions for another 77 days, without any reforms at all. Senator McConnell’s extension passed the Senate without debate.
But the House of Representatives left town without passing Senator McConnell’s bill, at least until May 12, 2020, and possibly longer. That means that Section 215 of the USA PATRIOT Act, along with the so-called lone wolf and the roving wiretap provisions have expired, at least for a few weeks.
So Now What?
EFF has argued that if Congress can’t agree on real reforms to these problematic laws, they should be allowed to expire. While we are pleased that Congress didn’t mechanically reauthorize Section 215, it is only one of a number of largely overlapping surveillance authorities. The loss of the current version of the law will still leave the government with a range of tools that is still incredibly powerful. These include other provisions of FISA as well as surveillance authorities used in criminal investigations, many of which can include gag orders to protect sensitive information.
In addition, the New York Times and others have noted that Section 215’s expiration clause contains an exception permitting the intelligence community to use the law for investigations that were ongoing at the time of expiration or to investigate “offenses or potential offenses” that occurred before the sunset. Broad reliance on this exception would subvert Congress’s intent to have Section 215 truly expire, and the Foreign Intelligence Surveillance Court should carefully—and publicly—circumscribe any attempt to rely on it.
Reform Is Still Needed
Although Section 215 and the two other provisions have expired, that doesn’t mean they’re gone forever. For example, in 2015, during the debate over the USA FREEDOM Act, these same provisions were also allowed to expire for a short period of time, and then Congress reauthorized them for another four years. While transparency is still lacking in how these programs operate, the intelligence community did not report a disruption in any of these “critical” programs at that time. If Congress chooses to reauthorize these programs in the next couple of months, it’s unlikely that this disruption will have a lasting impact.
The Senate plans to vote on a series of amendments to the House-passed USA FREEDOM Reauthorization Act in the near future. Any changes made to the bill would then have to be approved by the House and signed by the President. This means that Congress has the opportunity to discuss whether these authorities are actually needed, without the pressure of a ticking clock.
As a result, the House and the Senate should take this unique opportunity to learn more about these provisions and create additional oversight into the surveillance programs that rely on them. The expired provisions should remain expired until Congress enacts the additional, meaningful reforms we’ve been seeking.
Prior to joining EFF, India spent over 10 years in Washington, DC as a legislative staffer to three members of Congress from California. Her work there primarily focused on the appropriations process, specifically analyzing and funding programs in the Departments of Veterans Affairs, Homeland Security, and Justice. Her biggest legislative accomplishment was authorizing, funding and then naming a new outpatient VA/DoD clinic that will serve over 80,000 people.
Andrew is a senior staff attorney on the Electronic Frontier Foundation’s civil liberties team. He focuses on EFF’s national security and privacy docket, as well as the Coders’ Rights Project. While in law school, Andrew worked at the Berkman Center for Internet and Society, the American Civil Liberties Union’s Speech, Privacy, and Technology Project, and the Center for Democracy and Technology. He received his undergraduate and law degrees from Harvard University and an M.F.A. in creative writing from New York University. His interests include Boggle and donuts.
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