The government may be considering continuing its phone dragnet that aspires to collect all of Americans' phone records even if Congress lets the authorization for it -- Section 215 of FISA -- expire in June.
At least, one judge on the Foreign Intelligence Surveillance Court seems to think that's a possibility.
In the most recent reauthorization for the phone dragnet, which was signed February 26 and released on March 11, the judge who signed the order, DC District Judge James Boasberg, provided directions to the government for each of three scenarios that may occur with the phone dragnet in the next several months: one or more of three Circuit Courts currently reviewing the program might approve or strike down aspects of it, Congress might reform the phone dragnet, or Congress might do nothing and let Section 215 expire on June 1.
For each scenario, Boasberg basically directed the government to let the court know how it would affect the dragnet.
In the last scenario, Boasberg pointed to language Congress included in the PATRIOT Act Reauthorization of 2006 that might let the government continue the collection program it currently has.
As the New York Times reported in November, that language would permit any investigation started before June 1, 2015 to continue. “It was always understood that no investigation should be different the day after the sunset than it was the day before,” the Times quoted former Senate Intelligence Committee lawyer Michael Davidson, who was involved in previous reauthorizations of the PATRIOT Act.
The government ties its phone dragnet collection to generalized "enterprise" investigations targeting specific terrorist groups, with each order specifying which groups may be targeted for queries of the phone records (though the names of these groups are redacted in the orders). Effectively, for the last 9 years, the government has been claiming that the phone records of every single American are "relevant to" its standing investigation into al Qaeda and several other terrorist groups. And since those enterprise investigations remain in place, the government may well argue that the Sunset of that provision of the PATRIOT Act in June shouldn't affect that collection.
This is among the possibilities that Boasberg addressed in his order. "If Congress ... has not enacted legislation amending [Section 215] or extending its sunset date," Judge Boasberg directed the government in his order, "the government is directed to provide a legal memorandum ... addressing the power of the Court to grant such authority beyond June 1, 2015." Boasberg is telling the government they would need to provide a legal argument explaining why they think they can continue the dragnet after the Sunset.
In public statements, the government has been coy about what they might do if Section 215 expires in June. At an appearance last month at Brookings, for example, Office of the Director of National Intelligence General Counsel Bob Litt claimed, "we’re not doing extensive contingency planning" for what happens if Section 215 sunsets. Indeed, he stated that if Section 215 lapsed, the program would end. "If it sunsets, if it goes away, obviously the program will end." When contacted for comment, the office would not comment on the record for this article.
Yet (at least in the opinions that have been made public) the FISC rarely raises issues that the government has not formally noticed to the court. And the government often discusses its legal arguments with the Court before it submits them formally. So Boasberg's mention of the possibility may suggest the government has at least floated the possibility of continuing the dragnet even after the law authorizing it expires with the Court.
Of course, we would only know if the government decided to do that if it released the opinions authorizing. But we have no way of ensuring that would happen. The government only releases some of the orders issued by FISC, and it does so at its own prerogative. What better way to put the phone dragnet back into the shadows than to continue it even after it apparently expired?
Bob Litt has said if Section 215 sunsets, the dragnet (and the collection authorized by the other roughly 175 orders last year) would end. Given the reference in Boasberg's order, it would be nice to get more concrete confirmation of that claim.
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