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Whither the Section 215 Reauthorization Debate?

Remember section 215 of the USA PATRIOT Act — and the bulk telephone records metadata program the government conducted pursuant a controversial interpretation of that authority? Remember how section 215 is set to expire on June 1 — which is why folks were so confident that Congress would just have to consider at least some meaningful surveillance reforms after and in light of the Snowden revelations? Remember how the Senate version of the USA FREEDOM Act died in late November — but at least some folks on this blog were confident that there’d still be some momentum for some kind of reform in the weeks and months leading up to that June 1 deadline?

Well, it’s now March 19. June 1 is 73 short days away — which, as slowly as things move through this Congress, might as well be next week. And, so far as I can tell, no one on the Hill is talking about section 215. Don’t just take my word for it, though; at a roundtable lunch today sponsored by Third Way, Rep. Adam Schiff — the Ranking Member of the House Permanent Select Committee on Intelligence — confirmed that there are, at the moment, no “high-level” discussions currently underway about section 215 (and I like to think he’d know). As Congressman Schiff suggested, among other things, the absence of significant advance debate dramatically increases the likelihood that there will simply be a last-minute push to reauthorize section 215 in its current form (since there wouldn’t be time for meaningful debate over reforms/alterations to the existing language and statutory authorities).

Even though such a result would vindicate a post I wrote after USA FREEDOM died last November, it would be more than just a missed opportunity on Congress’s part. Far more importantly, although many might argue that it would simply shift the onus for resolving the legality of the telephone metadata program to the courts, it seems likely that, given what we now know about the government’s interpretation of section 215, there’d be no way to view such a “clean” reauthorization as anything other than congressional ratification of that (dubious) reading of the statute — which would leave the Fourth Amendment challenge as the only remaining issue to be resolved by the Second, Ninth, and D.C. Circuits (and, perhaps, the Supreme Court). In other words, the closer we get to June 1 without meaningful discussion in Congress about section 215 reform, the more likely it is that we’ll get a result that’s worse than no reform–unqualified congressional validation of the government’s deeply contested interpretation. That’s not reform; that’s entrenchment.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).