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Section 215 of the Patriot Act Expected to Sunset in December

Reports Privacy

Section 215 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”), 50 U.S.C. § 1861 (2012).

Together with two other PATRIOT Act Provisions, Section 215 of the USA Patriot Act is set to sunset on December 15, 2019, unless Congress renews it. After the sunset, the U.S. government’s power to collect business records for foreign intelligence investigations would be greatly curtailed.

Section 215 authorizes the collection data for investigations of international terrorism, counterespionage, or foreign intelligence investigation. Under Section 215, the NSA can petition the Foreign Intelligence Surveillance Court (“FISC”) to order the production of business records and other “tangible things” if deemed “relevant” to the forementioned investigations. Most famously, Section 215 authorizes the bulk collection of telephony metadata, or call detail records (“CDRs”). These CDRs contain the time, duration, and participating numbers in a telephone call, but do not include information regarding the content of the call. Originally, after the passage of the PATRIOT Act, the NSA could store these CDRs and search them as needed. However, since the passage of USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015), the CDRs are held by telephone companies, and the NSA can only request that the FISC order the production of specific searches of those records.

In the event of the sunset of Section 215, the FISC’s power to compel production of business records will still exist, but its scope will be much narrower.

First, the entities which can be queried will be limited. Section 215 allows the FISC to compel production of business records from any entity; however, after the sunset, the FISC could authorize production only from entities that count as common carriers, public accommodation facilities, storage facilities or vehicle rental facilities.

Second, the situations in which the queries can be made will be limited as well. The government will be required to have “specific and articulable facts giving reasons to believe the person to whom the record pertains is a foreign power or agent of a foreign power”. In contrast to the current situation under Section 215 where only reasonable grounds is required, the government will be forced to shoulder a greater burden to prove the legitimacy of such queries for records.

In summary, if Section 215 is not renewed before its sunset, the FISC’s power to compel production of business records will be greatly limited.

However, some scholars have argued that the sunset of Section 215 would not deprive the NSA of much useful information. They note that telecommunication is now largely carried out through messaging apps, which do not create CDRs (though some disagree). They also point to the fact that, last year, the NSA deleted its entire collection of CDRs collected since 2015, and reports that the NSA has stopped collecting telephony metadata.

Overall, the sunset of Section 215 will indeed legally limit the government’s power to intervene personal privacy. It will be important to watch what different voices are saying about Section 215 to determine whether or not Congress will renew it. While law enforcement officials in the DOJ, FBI, and NSA still advocate for the provision’s renewal, lawmakers on both sides of the aisle are skeptical. In a recent House Judiciary Committee FISA Oversight Hearing, Democrats, like Committee Chairman Jerrold Nadler, pointed to “complicance problems and minimal evidence of the program’s utility.” Republicans raised concerns over Carter Page FISA applications. Keeping a close eye on what the two parties are thinking will help us better predict whether Congress will reauthorize Section 215 before the sunset in December.