For the last several weeks, Congress has been discuss reforms to Section 215 of the Patriot Act, a provision that has been used to justify the collection of vast quantities of Americans’ phone records. On the table so far are Sen. Mitch McConnell’s reauthorization bill that simply extends the provision for 5 years and the USA Freedom Act which introduces numerous surveillance reforms, including changes to Section 215. While the USA Freedom Act was approved by the House Judiciary Committee last week and will go to the floor soon, the path of the Senate debate is much less clear.
We’re updating our readers’ guide on Section 215 because it is on track to expire in 27 days — and because the House has only nine legislative days before it sunsets (the Senate has 14). The guide includes a number of Just Security posts on various issues relevant to the debate along with key government and court documents on the program.
(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)
Legislative Proposals & USA Freedom Act
USA Freedom and the Surveillance Reform That Almost Was, Elizabeth “Liza” Goitein details the debate over back door searches of Americans’ data during the House Judiciary markup of the USA Freedom Act. May 1, 2015.
The Minimalist Surveillance Reforms of USA Freedom, Patrick Eddington writes about the lack of substantive reforms contained in the USA Freedom Act. April 29, 2015.
Senator McConnell’s Modest Proposal to Reform Section 215: Don’t!, Steve Vladeck weighs in on McConnell’s clean reauthorization proposal. April 23, 2015.
Effectiveness of Bulk Collection
Connecting the Dots: Assessing the Effectiveness of Bulk Phone Records Collection, Marshall Erwin on his research into how effective bulk collection of metadata is based on the examples government officials use to support the program. January 13, 2014.
How to Evaluate Whether the NSA’s Telephony Metadata Program Makes Us Safer (and What Proponents and Opponents Get Wrong), Ryan Goodman examines the strongest claims that proponents of bulk collection raise and proposes some ways to measure effectiveness. December 27, 2013.
Reforms and Public Discussion
The Patriot Act’s Sunset is the Perfect Chance to Make the FISA Court More Like a Real Court, Elizabeth “Liza” Goitein & Faiza Patel point out that the Section 215 reauthorization debate may be a perfect window to bring about broader FISA Court reform. April 13, 2015.
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 Intelligence Time Machine, Marshall Erwin writes about the National Research Council’s January report on bulk collection and the underlying assumptions behind the study. April 30, 2015.
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 IC’s Statistical Transparency Report can be found 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.