White House: No plan B if NSA deadline passes

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The Obama administration will end the National Security Agency’s (NSA) bulk collection of Americans’ phone records if Congress is unable to reauthorize an expiring provision, the White House confirmed to The Hill.

“If Section 215 sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Ned Price said in a statement.

Section 215 of the Patriot Act authorizes the NSA’s collection of phone “metadata,” such as records about who calls whom and when, but not the actual content of their conversations. It is set to expire on June 1 unless Congress acts.

While top-ranking officials at the Office of the Director of National Intelligence had previously said that there would be no backup plan in the event of congressional inaction, the new statement, which was first obtained by Reuters, is the first time the White House has made clear that the program will wholly end if lawmakers fail to move forward. 

The statement also clarifies that the administration will not seek to pursue a legal loophole to continue the phone records collection.

In November, The New York Times revealed the existence of a legal provision allowing for ongoing investigations to continue regardless of congressional authorization. If the phone records collection program is viewed to be one continuous investigation — as opposed to multiple individual ones — it might be allowed to continue, some lawyers have speculated. 

When the secretive Foreign Intelligence Surveillance Court last month renewed the records collection program for three months, it also seemed to leave the door open for the possibility that it could be continued even if Congress did not act. 

“If Congress ... has not enacted legislation amending [the law] or extending its sunset date ... the government is directed to provide a legal memorandum ... addressing the power of the Court to grant such authority beyond June 1, 2015,” the court said at the time.

That caused some NSA critics to worry that the administration might think it has an extra ace up its sleeve in the event that Congress failed to act.

The court “does make clear it considers [continuing the program] a distinct possibility,” journalist and NSA critic Marcy Wheeler wrote in a blog post

The White House’s new statement is the clearest sign yet it has no intention of doing that.

“In addition, allowing Section 215 to sunset would result in the loss, going forward, of a critical national security tool that is used in a variety of additional contexts that do not involve the collection of bulk data,” Price said in his statement.

“That is why we have underscored the imperative of congressional action in the coming weeks, and we welcome the opportunity to work with lawmakers on such legislation.”

NSA reformers have eyed the June 1 deadline as their best opportunity to force changes to the spy agency. With just over two months left, however, lawmakers have yet to begin serious discussions about legislation to reform and reauthorize the program.