Congress Must Take Action Regarding Phone Surveillance Following Court Ruling That Current Program Is Unlawful

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The U.S. House of Representatives has voted to end the National Security Agency’s bulk collection of telephone metadata, a practice secretly authorized by the US Foreign Intelligence Surveillance Court (FISC) under Section 215 of the Patriot Act. Known to exist since May 2006, the program has allowed the NSA to collect and store phone numbers of call originators and recipients, along with times and lengths of calls, for all calls made to, from or within the United States. The purported goal of the program has been to monitor individuals capable of terrorism, but the result has been an NSA-controlled, ever-expanding database of all known phone conversations, the majority of which have no bearing on national security.

Wednesday’s USA Freedom Act, passed in a vote of 338 to 88, requires phone metadata to remain in the hands of telecommunications companies, prohibiting government access without a court order identifying suspicion of terrorism.

The House of Representatives decision rides on the heels of last week’s Second Circuit appeals court verdict that the National Security Agency’s bulk telephone metadata program is in excess of “the scope of what Congress has authorized” in Section 215 of the Patriot Act. Although the appeals court recognized the lawlessness of the NSA’s metadata collection, it has deferred to Congress to take action: “We note that at the present time, Section 215 is scheduled to expire in just several weeks. The government vigorously contends that the program is necessary for maintaining national security, which of course is a public interest of the highest order. Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began. In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.”

Debate is exactly where Congress finds itself right now. The USA Freedom Act has passed the House of Representatives and has the support of the White House, but still must make it through the Senate. Senate Republicans Mitch McConnell and John McCain are in favor of extending Section 215 of the Patriot Act as is until 2020, but as Techdirt pointed out, the Second Circuit court’s decision implies that Section 215 will no longer be used to justify the bulk collection of metadata that these senators were looking for. Also in light of the Second Circuit court’s decision, the Electronic Frontier Foundation has altered its stance and is pressuring Congress to adopt an even stronger (2013) version of the USA Freedom Act.

Congress should not squander its opportunity to profoundly alter the legal landscape of government surveillance. If you’d like to share your thoughts on phone surveillance with Washington, check out www.fight215.org.