Monday, June 1, 2015

Controversial PATRIOT Act sections expire, for now

A Gap in Surveillance, but Ways Around It - - Charlie Savage:

May 31, 2015 - "For the first time since the aftermath of the terrorist attacks of Sept. 11, 2001, Americans are again free to place phone calls ... without having logs of those contacts vacuumed up in bulk by the National Security Agency. And ... government agents ... will have to subpoena phone companies for associated calling records and wait for the response to see if anyone in the United States has been in contact with that number. The N.S.A. can no longer simply query its database for the information.

"This unusual situation may last only a few days, until Congress can reach an accommodation over three counterterrorism laws that expired at 12:01 a.m. Monday....

"One of the expired laws permitted wiretap orders of 'lone wolf' terrorism suspects who are not part of a foreign group, a provision that has apparently never been used. A second permitted 'roving' wiretap orders that follow suspects who change phones, a provision that apparently has been used only rarely.

"The third permitted court orders requiring businesses to turn over records that are relevant to a national security investigation, the provision known as Section 215 of the Patriot Act. In addition to the bulk phone records program, the F.B.I. used Section 215 about 160 times last year to obtain particular business records, like suspects’ Internet activity logs.

"All three of the expired laws contained a so-called grandfather clause that permits their authority to continue indefinitely for any investigation that had begun before June 1.... A senior intelligence official recently told The New York Times that the administration was open to invoking the grandfather clause to get the records if a need arose during any lapse.

"In theory, the Obama administration could also invoke the grandfather clause to ask the Foreign Intelligence Surveillance Court to reauthorize the bulk phone records program as well. However, the administration has vowed not to do that.... A federal appeals court recently rejected the theory that Section 215 could be used to authorize the bulk calling logs program...

"But the apparent loss of the program for now does not mean the government has no way to analyze calling records linked to a new suspect. The F.B.I. can still issue subpoenas called national-security letters to phone companies to obtain the records....

"The Bush administration started the program in October 2001, and persuaded the Foreign Intelligence Surveillance Court to start blessing it as legal under Section 215 in 2006. Since it came to light in 2013, via leaks by the former intelligence contractor Edward J. Snowden, two independent panels studied classified files and concluded that it had not been abused, but also that it had provided scant concrete benefits."

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