US Patriot Act's phone spying rules are dead – but that means very little

Letting Section 215 provisions lapse may be the worst solution

Analysis For the last 36 hours the NSA hasn't been able to collect the metadata on every American's mobile phone calls, and yet the Republic still stands, despite warnings of dire consequences.

"A small group of senators is standing in the way. And, unfortunately, some folks are trying to use this debate to score political points," said President Obama, who devoted his weekly address to the nation to the topic.

"This shouldn’t and can't be about politics. This is a matter of national security. Terrorists like al Qaeda and ISIL aren’t suddenly going to stop plotting against us at midnight tomorrow. And we shouldn’t surrender the tools that help keep us safe."

Unlike Obama, some privacy campaigners have rejoiced at the Senate's failure to pass new legislation to reauthorize certain sections of the Patriot Act, in particular the infamous Section 215 that allowed the mass metadata slurp. But the worst may be yet to come.

For a start, data collection hasn't really stopped. Under grandfathering clauses in the legislation law enforcement is still allowed to collect data for ongoing investigations that began before Sunday's deadline. It's likely a lot of investigations have been opened up before the deadline just in case.

At the US Second Circuit Court of Appeal hearing which ruled Section 215 was illegal, the court heard how some investigations were broad in their scope, to say the least. Examples included "fighting terrorism" as an investigation area, which could be applied to almost anything.

So where do we go from here? EFF civil liberties director David Greene told The Reg that with Senate majority leader Mitch McConnell abandoning his attempts to write the Patriot Act into permanent US law, there are essentially two options on the table.

"We'll probably see either the USA Freedom Act already passed by the House of Representatives, or USA Freedom with amendments," he explained. "It's flawed, but at least it's a start. This is the first legislation to limit the NSA's powers since 1978, after all."

The House of Representatives legislation calls for the NSA to stop collecting data under Section 215 within six months, whereas the Senate wants the process to take a year. Law enforcement will still have access to the data but will have to ask the phone companies first.

It's amendments like these that are going to cause some negotiating among senators. Some, including presidential hopeful Rand Paul, would rather see the legislation lapse in its entirety, but Greene explained that might be even worse than flawed legislation.

"Sunsetting isn't a complete solution, since it means we've missed a chance at reforming the Foreign Intelligence Surveillance Court with USA Freedom," he said. "Whatever option is taken will still leave a lot of work to do – there's a long road ahead." ®