NSA Spying Wins Another Rubber Stamp

Mass surveillance will continue for now, but is set to expire on June 1—unless Congress acts.

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013.
National Journal
Feb. 27, 2015, 12:38 p.m.

A fed­er­al court has again re­newed an or­der al­low­ing the Na­tion­al Se­cur­ity Agency to con­tin­ue its bulk col­lec­tion of Amer­ic­ans’ phone re­cords, a de­cision that comes more than a year after Pres­id­ent Obama pledged to end the con­tro­ver­sial pro­gram.

The For­eign In­tel­li­gence Sur­veil­lance Court ap­proved this week a gov­ern­ment re­quest to keep the NSA’s mass sur­veil­lance of U.S. phone metadata op­er­at­ing un­til June 1, co­in­cid­ing with when the leg­al au­thor­ity for the pro­gram is set to ex­pire in Con­gress.

The ex­ten­sion is the fifth of its kind since Obama said he would ef­fect­ively end the Snowden-ex­posed pro­gram as it cur­rently ex­ists dur­ing a ma­jor policy speech in Janu­ary 2014. Obama and seni­or ad­min­is­tra­tion of­fi­cials have re­peatedly in­sisted that they will not act alone to end the pro­gram without Con­gress.

“While the ad­min­is­tra­tion waits for the Con­gress to act, it has con­tin­ued to op­er­ate the pro­gram with … im­port­ant modi­fic­a­tions in place,” White House press sec­ret­ary Josh Earn­est said in a state­ment re­leased late Fri­day.

More than a year’s worth of ef­forts to re­form the NSA stalled last year, as the Sen­ate came two votes short of ad­van­cing the USA Free­dom Act in Novem­ber. The meas­ure failed to over­come a fili­buster by Re­pub­lic­ans, many of whom warned any lim­it­a­tion im­posed on the NSA could bol­ster ter­ror­ist groups like the Is­lam­ic State.

It is widely ex­pec­ted that law­makers will re­in­tro­duce ver­sions of the Free­dom Act in the new Con­gress, but no bill has emerged so far. Core parts of the post-9/11 Pat­ri­ot Act will sun­set on June 1, in­clud­ing Sec­tion 215, which grants the NSA leg­al au­thor­ity to con­duct its con­tro­ver­sial drag­net sur­veil­lance pro­gram.

Amid the con­gres­sion­al in­ac­tion, the FISA Court has now re­newed the NSA’s most con­tro­ver­sial spy­ing pro­gram five times — in March, June, Septem­ber, Decem­ber and now Feb­ru­ary — since Obama de­livered his pledge to end it in its cur­rent form.

“Con­gress has a lim­ited win­dow be­fore the June 1 sun­set to en­act le­gis­la­tion that would im­ple­ment the Pres­id­ent’s pro­posed path for­ward for the tele­phony metadata pro­gram, while pre­serving key in­tel­li­gence au­thor­it­ies,” Earn­est said in his state­ment. “The ad­min­is­tra­tion con­tin­ues to stand ready to work with the Con­gress on such le­gis­la­tion and would wel­come the op­por­tun­ity to do so.”

Some NSA crit­ics and even some law­makers, such as Rep. Adam Schiff, the top Demo­crat on the House In­tel­li­gence Com­mit­tee, have called for Obama to end the pro­gram uni­lat­er­ally.

The in­tel­li­gence com­munity, un­der Obama’s dir­ec­tion, has im­ple­men­ted some changes to how it stores and col­lects U.S. and for­eign com­mu­nic­a­tions data, but pri­vacy ad­voc­ates have re­peatedly in­sisted those tweaks are not enough.

It re­mains un­clear if there is a path for­ward for sub­stan­tial NSA re­form in Con­gress, leav­ing sur­veil­lance crit­ics to worry law­makers may ul­ti­mately pass a clean reau­thor­iz­a­tion of the Pat­ri­ot Act.

The gov­ern­ment is re­quired to seek reau­thor­iz­a­tion of its phone re­cords pro­gram every 90 days, though the most re­cent or­der sur­passes the 90-day lim­it by a few days in or­der to reach June 1.

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