At midnight late Sunday, three provisions of the USA PATRIOT Act of 2001 expired. The most prominent of these was section 215, which, the government has argued, provided authority for the bulk collection of Americans’ phone records through a program first disclosed to the public two years ago by Edward Snowden.
Although the expiration of section 215 portends at least a temporary suspension of the phone records program, efforts are well under way in Congress to pass new legislation that would continue to allow the government to collect phone records — but with stricter limits on which records and for what purpose. Indeed, the USA FREEDOM Act, a reform bill that has the support of the Obama administration, passed the House by a 338-88 vote on May 13, and may pass the Senate this week.
How much do you know about the government’s surveillance authorities — and the phone records program specifically? Take this quiz and find out.
It came about largely because of concerns that the government had insufficient surveillance, intelligence, and law enforcement authorities to prevent future attacks on the scale of 9/11.
Enacted six weeks after 9/11, the USA PATRIOT Act includes 238 different revisions to U.S. criminal, immigration, and surveillance laws — the overwhelming majority of which are still on the books.
Section 215 is just one of several authorities at the core of U.S. foreign intelligence surveillance, along with Executive Order 12,333 and the 2008 amendments to the Foreign Intelligence Surveillance Act.
The phone records program was based upon a secret interpretation of section 215, to which most members of Congress were not privy when they voted to reauthorize the provision in 2010 and 2011. And the Supreme Court has long held that we have no constitutional right to privacy in information (like phone records) that we voluntarily provide to third parties (like our phone companies), but has suggested in recent years that new technologies might justify a revisiting of that principle.
The House of Representatives passed the USA FREEDOM Ac t— a package of modest reforms backed by the Obama Administration — by a 338-88 vote on May 13. Senate Majority Leader Mitch McConnell has proposed an alternative, “clean” reauthorization of section 215 that would allow the phone records program to continue without changes for another two years. A third alternative is for Congress to pass nothing, but this seems especially unlikely.
Steve Vladeck is a professor of law and the Associate Dean for Scholarship at American University Washington College of Law.