RESEARCH
Section 215 of the USA PATRIOT Act:Options for Congress
Michael Holtje
May 12, 2015
Section 215 of the USA PATRIOT Act (2001) expanded the Foreign Intelligence
Surveillance Act (FISA) authority for seizing business records. This provision has served
as a legal basis for the government’s controversial collection of bulk telephone metadata.
Section 215 is set to expire on June 1, and Congress is now considering whether to
reauthorize or amend the provision. Last week, the Second Circuit Court of Appeals ruled
that “the bulk telephone metadata program is not authorized by Section 215.” This ruling,
coming at this time, is likely to impact congressional considerations concerning the
reauthorization or amendment of Section 215.
Legal analysts have summarized the effects of Section 215 as follows. Before 2001, FISA
authorized the government (with a FISA Court order) to seize business records of certain
enterprises, namely those involving travel, lodging, and storage. Section 215 of the USA
PATRIOT Act amended FISA to expand this seizure authority by removing the
limitations on the types of businesses. It also expanded the items subject to seizure from
“records” to “any tangible things.” After subsequent amendments and reauthorizations,
Section 215 now enables the seizure of business records or other “tangible things” that
are “relevant to an authorized investigation” concerning foreign intelligence, international
terrorism, or clandestine intelligence activities.
Through a series of unauthorized disclosures and government declassifications, the public
learned that Section 215 facilitates government acquisition of telephone metadata in bulk
(i.e., numbers dialed, time and duration of calls). Since then, the legality of Section 215
has been strongly debated, with critics asserting that the government’s implementation of
Section 215 contravenes the statute and/or violates the Fourth Amendment rights of
telephone companies or their customers.
In response to the public debate, the Obama Administration implemented some changes
to the government’s existing collection program and asked Congress to authorize an
alternative program. Under that new program, the government would not take possession
of the bulk metadata. Instead, absent an emergency, the data would remain with
telephone companies, and the government would obtain data pursuant to specific FISA
Court approvals. The USA FREEDOM Act is intended to (among other things)
implement central features of the alternative program. Last year, a previous version of
that bill passed the House of Representatives but not the Senate. Congress is currently
considering a new version of the bill.
Under current law, Section 215 will expire in three weeks. Before then, Congress could
choose one of four options: (1) reauthorize the provision, (2) amend the provision
through the USA Freedom Act, (3) amend the provision a la carte, or (4) allow the
provision to expire.
Significantly, the Second Circuit Court of Appeals recently ruled that the government’s
bulk collection of telephone metadata “exceeds the scope of what Congress has
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authorized and therefore violates Section 215.” As several legal observers have noted, the
Court held that this metadata program is not “relevant to an authorized investigation”
because the collection program is not customized to probe particular facts of a specific
inquiry (and hence is not limited by those facts). Rather, the telephone metadata program
supports an overall counterterrorism mission. The Court also held that previous
congressional reauthorizations of Section 215 did not ratify the government’s broad
interpretation of “relevance” because, at the time of reauthorization, Congress may not
have been aware of that interpretation. The Court did not rule on the collection program’s
constitutionality, nor did it order an end to the program.
The Second Circuit’s opinion has notable implications for Congress’ reauthorization
options. Congress could still authorize the existing bulk metadata collection program, but
if the Second Circuit’s ruling stands, doing so could require a new, express authorization
rather than a reauthorization. The Court stated that, “[i]f Congress fails to reauthorize
Section 215 itself, or reenacts Section 215 without expanding it to authorize the telephone
metadata program, there will be no need for prospective relief, since the program will
end….” Prior to the Court’s ruling, Senator McConnell introduced (what was thought to
be) a “clean reauthorization” bill to preserve Section 215, without amendment, for several
more years. Before the Second Circuit’s ruling, such a reauthorization might have
suggested that Congress approved the government’s bulk metadata collection program.
After the Court’s ruling, however, a “clean reauthorization” of Section 215 could mean
that Congress is ratifying the Second Circuit’s conclusion that the provision does not
authorize bulk metadata collection.
Even before the Court’s ruling, the Obama Administration preferred amending Section
215 through the USA FREEDOM Act. The House of Representatives seemed to prefer
this option as well. Given the potential difficulties of approving a new, express
authorization of the government’s metadata collection program before June 1, the USA
FREEDOM Act may become the likely vehicle for congressional action.
The third option, independent amendments to Section 215, might result from
congressional compromises following the Second Circuit ruling. Given Congress’ short
timeline, though, this option may be difficult to effectuate. If Congress pursues this
option, the practical outcome of that legislation will depend on the nature of the specific
amendments. If such a compromise cannot be reached before June 1, Congress could pass
a short-term compromise to provide more time for developing a longer-term solution.
The final option would be for Congress to allow Section 215 to expire. Some observers
have previously suggested that, if Congress allowed Section 215 to expire, the bulk
telephone metadata collection program might nevertheless endure because Section 215
authorizes collection to continue so long as the metadata remain relevant to an
investigation that started prior to the June 1 expiration. However, after the Second
Circuit’s opinion, this possibility is diminished since the Court declared that Section 215
never authorized the bulk metadata collection.
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Of course, many of these implications depend on whether Congress assumes that the
Second Circuit opinion will stand. It is possible that another court may reach a different
conclusion. If so, the intertwined statutory, constitutional, and legislative landscape may
become even more complex.
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