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The last 100 days

In just under 100 days, the future of major U.S. surveillance programs will be decided. At the beginning of June, key provisions of the USA PATRIOT Act will “sunset,” meaning they will expire unless Congress renews them. One of those provisions is Section 215, which rose to infamy (or as close to infamy as an obscure foreign intelligence surveillance law can get) as the source of the NSA’s bulk phone call metadata surveillance program, revealed by Edward Snowden in June 2013.  As this deadline looms ever nearer, the time is now for meaningful reform of these invasive, over-abused authorities.

In a nutshell, the government has given itself the authority under Section 215 to monitor everyone’s phone records: Your phone calls to your children, your partner, your psychiatrist, church, pawn shop, or bank — all of it is being swept into a massive government database. This is possible because the government’s authority under Section 215 was substantially expanded after the September 11, 2001 attacks. Today, the law allows the government to gain access to certain “tangible things,” including business records, so long as “there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” In an opinion released since the program was revealed by the Guardian, the U.S. government has argued (and the secret FISA Court agreed) that, because terrorist operatives may be unknown, and it is necessary to obtain all phone records in order to potentially detect unknown operatives, therefore all phone records satisfy the statutory standard.

{mosads}To say the least, the NSA’s interpretation strains the plain text of the law, and it’s inspired several civil society organizations to file lawsuits. Meanwhile,  hundreds of thousands of individuals have taken to the streets and the internet to express outrage. Even the chief architects of the PATRIOT Act have expressed disbelief at the secret way the law’s language has been bent and manipulated. All of this shock is exacerbated by the government’s insistence that the program is grounded in the law, while the secret the FISA Court has prevented any type of adversarial process that would have forced a meaningful examination of the program at its inception.

So, here we are: This past Saturday marked only 100 days remaining before Congress must substantively reform the USA PATRIOT Act,reversing the administration’s overreach, or allow it to expire. The calls for reform are coming from all corners. Top officials at the NSA and the Office of the Director of National Intelligence have joined the White House in publicly calling for reform, along with a bi-partisan coalition of congressional leaders, surveillance and security experts, and a loud and growing chorus of civil society organizations and users around the world.

Reform of Section 215 (and related authorities) must prevent bulk collection of any personal information, which is inherently at odds with the Fourth Amendment and international human rights standards. Congress must lead reform efforts while preventing the authorization of other invasive surveillance programs. It also must avoid other harmful policies, like mandatory data retention, which forces companies to hold user data beyond any genuine business need, putting users’ data at risk and increasing overhead costs for companies. In order to ensure that reform provisions are being interpreted in accordance with their plain meaning, adequate transparency and accountability mechanisms also much be built in, as well, like a special advocate in the FISA Court to oppose government surveillance requests.

If these basic reforms cannot be passed through Congress, Section 215 must sunset. Unaccountable, unlawful, and unconstitutional surveillance programs cannot be allowed to continue unchecked.

However, while reform of Section 215 and its brethren is a great start, it’s not nearly enough. As soon as this reform hits the books, we have to turn to the variety of other powers and authorities the government has been using and abusing to collect and store personal information about users in the U.S. and around the world. But first we must use Section 215 reform to establish a framework that respects users’ rights.

These are not the next 100 days.  If we want a real shot at surveillance reform, these are the last 100 days. Congress must reform Section 215, or it must sunset it for good.

Stepanovich is U.S. policy manager at Access. Access endorsed the USA FREEDOM Act as introduced by Senator Leahy (D-Vt.) in 2014, a bi-partisan bill that was also endorsed by the White House, the Intelligence Community, and leading civil society organizations.


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