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'If you agree that it’s time to end mass surveillance,' says Kayyali, 'contact Congress and tell them what you expect to see: a no vote on reauthorization of Section 215 on June 1, along with some real comprehensive reform to NSA spying.' (Photo: Jason Samfield/flickr/cc)

White House Confirms: If Section 215 Expires, So Does Bulk Phone Records Collection

There’s some good news coming from the White House today that deserves repeating. Reuters is reporting that Ned Price, a spokesman from the President’s National Security Council, has unequivocally stated:

If Section 215 sunsets, we will not continue the bulk telephony metadata program.

Section 215 of the Patriot Act is the authority that the NSA, with the FBI’s help, has interpreted to allow the U.S. government to vacuum up the call records of millions of innocent people. It expires on June 1.

Some journalists and privacy advocates have speculated that, even if Section 215 were to expire in the absence of other legislation, bulk collection could continue under Section 102(b) of Public Law 109-177, which some have said would allow investigations that began before the expiration of Section 215 to continue. In November, Charlie Savage at the New York Times reported that the provision could mean that:

as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

We agree with ACLU deputy legal director Jameel Jafeer that “it would be ‘perverse’ to interpret the exception as permitting the government to ‘bootstrap itself into permanent Section 215 authority.’” But we do think that looking for loopholes in the language that governs surveillance makes perfect sense—after all, the government’s twisted interpretation of words related to surveillance is well-documented.

That’s why we’re pleased to see this announcement. If the importance of the June 1 expiration of Section 215 wasn’t already apparent, it’s clear now. With the clock ticking, Congress is running out of time to pass legislation that will reform bulk surveillance.

In fact, despite the Administration’s push for reform legislation, it looks increasingly likely that the next vote Congress will face on NSA spying is the June 1 sunset. That’s why contacting Congress about the vote is so important—lawmakers should understand that their vote is a statement about where they stand on the Constitution.

And, while the White House also claimed in its comments to Reuters that Section 215 is a “critical security tool,” the Administration’s own Presidential Review Group stated in a report [pdf]:

the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks[.]

Unless the Administration is playing the same kind of word games with “critical” and “essential” as it has with other words, it's pretty clear that if Section 215 isn’t even essential, it’s hardly critical. Other analyses of Section 215, both from the government and from outside researchers, have come to the same conclusion.

If you agree that it’s time to end mass surveillance, contact Congress and tell them what you expect to see: a no vote on reauthorization of Section 215 on June 1, along with some real comprehensive reform to NSA spying.


Nadia Kayyali

Nadia Kayyali is a member of the activism team at the Electronic Frontier Foundation.

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