With or Without the Patriot Act, Here’s How the NSA Can Still Spy on Americans

June 1, 2015
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by Jason M. Breslow Digital Editor

(AP Photo/J. Scott Applewhite)

While it may only be temporary, the National Security Agency on Monday lost its authority to collect Americans’ phone records in bulk after the Senate failed to extend provisions of the Patriot Act authorizing the controversial domestic surveillance program.

For now, the stall in the Senate means the NSA can’t collect any newly created telephone records. Under the now-lapsed Section 215 of the Patriot Act, the NSA gathered metadata such as who called whom, the time the call was placed and how long the conversation lasted.

Also lapsed are provisions of the law that allowed for wiretap orders on “lone wolf” terrorism suspects; that permitted roving wiretaps that follow suspects from device to device as they change phones; and that compelled businesses to turn over records deemed relevant to a national security investigation.

But these Patriot Act provisions represent just one component of the NSA surveillance capabilities exposed in 2013 by former NSA contractor Edward Snowden.

Under an entirely separate law, the 2008 FISA Amendments Act, the government still has the authority to access the communications of users of popular Internet sites such as Facebook, Google, Microsoft and Yahoo. Section 702 of the law, which does not expire until 2017, gives the government the ability to collect the content of an Internet user’s actual communications — not just metadata.

The law is geared towards non-citizens outside of the U.S., but as privacy advocates argue, it is inevitable that the communications of U.S. citizens and those of non-citizens lawfully living in the U.S. are swept up by the program.

“The phone records program under Section 215 is really just one piece of a much larger puzzle,” said Stephen Vladeck, a professor of law at the American University Washington College of Law. “They’re targeted at non-citizens but the way the technology works there is just no way for the vacuum cleaner to distinguish between the particles of dirt.”

An even older and more obscure Regan-era law, Executive Order No. 12333, provides U.S. intelligence with nearly identical surveillance capabilities to intercept overseas communications, Vladeck said, with the same implications for privacy.

“The way the government is intercepting communications under these authorities,” said Vladeck, referring to Section 702 and Executive Order 123333, “it cannot tell at the point of collection whether the actual sender or recipient is or is not a U.S. citizen.”

Also unaffected by the sunset of Section 215 is the use of National Security Letters, which since 9/11 have helped to dramatically expand the government’s ability to collect information about Americans directly from phone companies and Internet providers. Any FBI office can issue one, without a court’s review and with a gag order. In the past 10 years, more than 300,000 National Security Letters have been issued, according to the Electronic Frontier Foundation, and until 2013, no major Internet or phone company is known to have questioned the constitutionality of one.

Meanwhile, it’s not clear that all surveillance conducted under the Patriot Act has officially come to a close. As The New York Times noted, all three aspects of the law that expired Monday “contained a so-called grandfather clause that permits their authority to continue indefinitely for any investigation that had begun before June 1.”

Of course, by the end of the week, that may not matter. After having failed to extend the expiring Patriot Act provisions on Sunday, the Senate appears poised to pass a House bill, the USA Freedom Act, that would restore the lapsed Patriot Act powers into law. The one critical difference in the new law is that bulk phone records would stay in the hands of phone companies, rather than with the government.

Related Film: United States of Secrets

In this two-part, Peabody Award-winning series, FRONTLINE explores how the U.S. government came to monitor and collect the communications of millions of people around the world — and here at home — and the lengths to which officials tried hide the massive surveillance from the public.

Watch Part One:

And Part Two:

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