The Coming Death, and Afterlife, of the NSA Spying Law

In June 2013, the world was introduced to Edward Snowden, who showed us that the United States and many other countries have been engaged in dragnet surveillance of their own citizens. In June of this year, almost exactly two years later, Section 215 of the Patriot Act — which Snowden revealed has been used by the National Security Agency and other intelligence agencies to justify the practice — is set to expire.

Unfortunately, that is not going to mean the end of dragnet surveillance.

Section 215 was intended to be a versatile information-gathering tool for collecting data on an individual or a group during terrorism-related investigations, according to Harley Geiger, senior counsel for the Center for Democracy and Technology, who believes the entire Patriot Act should be reformed.

The provision permits the U.S. government to obtain “any tangible things (including books, records, papers, documents, and other items)” that it deems necessary, he said, adding that he doesn’t think it was meant for “persistent and massive-scale surveillance of populations at large.”

The scale of that surveillance has become so great that the NSA has been known to collect images and content from conversations between ordinary people who are not even being targeted, including content that is sexual in nature, religious, political or related to mental health.

Built into Section 215 is a clause that says the provision will “sunset,” or expire, June 1, unless Congress reauthorizes it. However, there are a few significant ways that intrusive surveillance will probably continue even if the clause does sunset.

For example, the information that intelligence agencies can collect with 215 could still be collected after it sunsets if those investigations were started before the sunset date. Essentially, the seemingly never-ending investigations into al-Qaida and the Islamic State group that have already begun can use 215 rules for as long as they go on.

Similar types of mass surveillance are also authorized under other authorities, such as the so-called pen/trap statute, Geiger said, referring to the Pen Register and Trap and Trace Authority under FISA. Decades ago, such authority was intended to allow investigators to collect the numbers dialed into and out of a telephone; but under the Patriot Act, that authority has been expanded to apply to Internet communications as well. “Sunsetting Section 215 would not modify the pen/trap statute.”

Until 2011, the pen/trap statute of the Foreign Intelligence Surveillance Act, or FISA, was used to conduct surveillance of phone call and email metadata — which means the data about the email and phone call, including the identity of the parties communicating as well as the date, time and duration of their communications, but not including the actual content of the email or call.

Intelligence agencies stopped using pen/trap in 2011 only because surveillance conducted under Section 215 was easier and yielded more useful results. Pen/trap doesn’t allow intelligence agencies to go after quite as much information as Section 215 — just metadata.

“They did not shut it down because they lacked the legal authority,” Geiger said. “They maintain they have the legal authority to continue collecting [metadata], but they just weren’t getting enough out of it. It was resource-intensive, because there was a great deal of metadata from email, and the cost and resources necessary to analyze it all were extensive.”

Allowing the government to collect our metadata might seem like no big deal, but when such information is analyzed, it can provide a lot of useful information about a person. For instance, metadata from cellphone towers can be cross-referenced to figure out where people have been, whom they have been with and what they have been doing.

“Metadata can reveal a great deal about an individual, especially if you’re getting a whole bunch of it in aggregate,” Geiger said. Another way that mass surveillance will probably continue after 215 sunsets is through Section 702 of FISA, which allows intelligence agencies to collect the content of email and phone conversations of noncitizens. In actuality, surveillance of noncitizens often intercepts the communications of American citizens as well, and U.S. agencies regularly share that information with foreign intelligence agencies, such as Britain’s Government Communications Headquarters.

“I’m going to work hard to end back-door searches under Section 702 of the Foreign Intelligence Surveillance Act, which intelligence agencies are using to read Americans’ private communications without a warrant,” Sen. Ron Wyden, D-Ore., a member of the Senate Select Committee on Intelligence, told Truthdig. He also said “ending dragnet collection under Section 215 of the Patriot Act is definitely a big priority.”

One important reason to consider reforming 215, he said, is that foreign countries look to the U.S. as an example: Whatever kind of surveillance we find acceptable will probably be replicated elsewhere.

In addition, simply knowing the government might be reading every word they ever express is creating a chilling effect among writers and American citizens in general, causing them to censor their own freedom of expression out of fear or caution, according to a report by PEN International, a literary and human rights organization. If the Patriot Act and other laws allowing intelligence agencies to intercept and share anything they want are not reformed, that effect may only get chillier.

“A number of independent experts — including the president’s own surveillance review group — have agreed that the government can get the phone records of suspected terrorists without collecting the records of huge numbers of Americans,” Wyden told Truthdig. “I’m going to keep pressing the administration to end bulk collection as soon as possible, without waiting for Congress, and I’m also going to keep working with my colleagues in the Senate to pass a law that makes this shutdown permanent.”

He added: “Every day that the bulk phone records collection program continues, there’s a little less liberty and a little less privacy in America.”