Talking About Section 215: A Readers’ Guide

Media coverage of John Oliver’s critique about the lack of discussion surrounding government surveillance programs seems to prove his point. Much, if not most, of the attention given to Sunday night’s episode of Last Week Tonight has focused on Oliver’s interview with Edward Snowden instead of focusing on the fact that the law governing one of the most heavily-criticized surveillance programs is up for potential reauthorization in less than two months. We’re talking about Section 215 of the Patriot Act, the provision allowing the NSA to collect vast quantities of Americans’ phone records.

Given that Section 215 is on track to sunset in 55 days on June 1 — and because Congress will be out of session starting May 21, which is only 45 days away — we thought it would be useful to provide the following list of Just Security posts on the issue along with government and court documents on the program in hopes of encouraging an informed public debate on the topic.

(While it is most commonly known as Section 215 of the Patriot Act, the provision is also known as Section 501 of Foreign Intelligence Surveillance Act (FISA) and is codified at 50 U.S.C. § 1861.)

Just Security Posts on Section 215 (organized by subtopic)

Reforms and Public Discussion

Whither the Section 215 Reauthorization Debate?, Steve Vladeck calls out the lack of public debate surrounding the Section 215’s potential reauthorization. March 19, 2015.

There Will Be Surveillance Reform, Jameel Jaffer on why the demise of the USA FREEDOM Act wouldn’t be the end of surveillance reform. November 20, 2014.

The End of the Snowden Affair, Steve Vladeck argues the demise of the USA FREEDOM Act was the last best chance for comprehensive surveillance reform. November 19, 2014.

A Republican Senate Takeover Won’t Doom Surveillance Reform, Patrick Eddington explores the prospects for Section 215 and broader surveillance reform under the Republican Congress. November 4, 2014.

An End to Dragnet Surveillance? David Cole discusses the announcement of the President’s proposed legislation for signals intelligence reform. March 24, 2014. 

President Obama Will Seek to Curb (End?) Section 215 Bulk Collection, Thomas Earnest on the President’s proposed legislation for Section 215 reform. March 24, 2014.

Two Developments re Section 215: (i) Changes to the Section 215 Program and (ii) Program’s Scope is Currently More Limited than Originally Thought, Thomas Earnest on the implementation of the President’s signals intelligence reforms. February 17, 2014.

Overview of Proposals to Reform Signals Intelligence Programs in Today’s Speech by the President, Thomas Earnest provides an overview of the President’s proposed signals intelligence reforms. January, 17, 2014.

Can § 215 Be Used for Content Collection?, Julian Sanchez asks whether Section 215 could be used to collect the content communications. December 13, 2013.

Government Reports and Reviews

The Newest Reforms on SIGINT Collection Still Leave Loopholes, Megan Graham highlights critical questions on the White House’s updated signals intelligence collection reforms. February 3, 2015.

Section 215 Telephone Metadata Collection: The Privacy and Civil Liberties Oversight Board Trashes Pretty Much Everyone, Barry Friedman on the PCLOB’s report on the Section 215 program. January 23, 2014.

PCLOB Releases Report, Recommends Government End §215 Program, Thomas Earnest on the release of the PCLOB’s report and its key takeaways. Thursday, January 23, 2014.

Data-Mining, Section 215, and Regulating the Government’s Use of Stored Data: The Overlooked, but More Important, Question About NSA Surveillance, David Cole and Marty Lederman reflect on the President’s Review Group’s report’s insights into the questions of collection and use data, including under Section 215. December 13, 2013.

Court Cases and Opinions

Renewed Focus on Statutory Construction in the Section 215 Litigation, Marty Lederman discusses ongoing litigation about the legality of Section 215 and the various statutory arguments at play. Sept. 4, 2014.

FISC OKs Section 215 Investigations of Americans, Despite First Amendment, Jennifer Granick on Judge John D. Bates’ opinion about when the First Amendment applies to and blocks surveillance. August 28, 2014.

Very Summary Account of Judge Pauley’s Opinion on the 215 Telephony Metadata Program, Marty Lederman provides an overview to Judge Paley’s opinion in ACLU v. Clapper. December 27, 2013.

Other Documents of Interest

Letter to Congress by privacy groups, technology companies, and trade associations urging reform can be found here.

The US Intelligence Community’s 2015 report on signals intelligence reforms can be found here, and a factsheet with an overview of the report is available here.

The Privacy and Civil Liberties Oversight Board’s report on the Section 215 program, as well as the separate statements of Board members, can be found here.

The FISA Court’s most recent opinion authorizing the bulk collection of telephone metadata can be found here. The IC’s next application to renew these authorities — if there is one — is due May 22, the day after Congress goes out of session.

Judge Claire Eagan’s declassified FISA Court opinion from August 29, 2013, which includes background on the program and details about the legal framework in which the program operates, is available here.

The unredacted, classified order from the FISA Court that was leaked by Edward Snowden in June 2013, is available here. The order was issued on April 23, 2013, and allowed the NSA to collect all call detail records (i.e., metadata) “created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

Judge John D. Bates’ declassified opinion on how First Amendment protections interact with Section 215 applications that are based, in part, on First Amendment-protected activity is available here. 

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