The three ways this NSA / Patriot Act mess can potentially go

Last month, a federal appeals court ruled that the National Security Agency’s bulk collection of Americans’ telephone metadata was illegal. Then today, as of midnight, some of the key provisions allowing for that metadata to be collected in the first place have expired.

For such a controversial government program, that’s a hell of a lot of action within one month’s time. And reading back on what the court had to say about the program’s illegality of the program, it seems like there is a ton of action that we can expect down the pipeline.

All of that now depends on the actions of Congress this week. It is widely understood to go one of the following three ways, each of which will probably pose its own legal challenges.

1) Congress reauthorizes the Section 215 of the Patriot Act unchanged

There were three sections of the Patriot Act that were allowed to expire today, most notably Section 215, which authorized the NSA to collect metadata on the phone activity of millions of Americans and hold onto the data for five years. Effective immediately, that program is done with.

That’s thanks to the usual Congressional impasse that has come to define modern politics, but in this case it’s an impasse with an asterisk: the Republican-led House of Representatives, which is usually quick to distance itself from President Obama, is actually in line with the executive branch. The White House and the House want to pass the USA Freedom Act, a piece of legislation that makes significant changes to Section 215.

Then, there’s the Senate. Majority leader Mitch McConnell, a Kentucky Republican, was long opposed to the USA Freedom Act. Instead, he favored keeping Section 215 as-is, apparently disregarding the previous (but non-binding) court order that declared Section 215 unconstitutional. The case would have to go up to the Supreme Court to be binding. “This is a high-threat period,” McConnell said late last month, describing why in his opinion the program needed to remain unchanged.

The court that issued the opinion foresaw that kind of pushback against its decision, and acknowledged that the section was about to expire, forcing Congress to take up the issue. For that reason, it didn’t order the program to cease, but rather merely suggested they do not reauthorize it unchanged. The court said (emphasis ours):

If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization. There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches, and to decide what if any relief appellants are entitled to based on our finding that the program as it has operated to date is unlawful.

That means that if the section is reauthorized, and the bulk metadata collection starts back up again, the courts will have to take the issue back up very soon. No one seriously thinks this is going to happen. (McConnell relented late Sunday night that there is little chance of this happening).

Regardless, the court warned that “We note… that whether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality.”

So in the unlikely event that the section is reauthorized as-is, it will come back to the courts, which now have already ruled against it.

2) Congress passes the USA Freedom Act, tweaking Section 215

A more likely situation is that the Senate passes, or lightly amends, the version of the USA Freedom Act that the House already passed. This is expected to happen sometime this week, after McConnell said on Sunday that the Senate will vote on Tuesday or Wednesday on an amended version of the House bill.

McConnell called it “the only realistic way forward,” yet some of the proposed amendments will be little fights within themselves.

One controversial amendment would give the NSA six months to wind down the metadata collection program, known as PRISM, while many lawmakers want it to end immediately. Another less controversial one would require telecommunications companies to notify the federal government if they plan to keep call records for less than eighteen months, according to Politico.

Even if the amendments are agreed upon and President Obama signs the act into law, though, parts of the old Section 215 will still likely be taken to court. In its decision ruling that Section 215 was unconstitutional, the appeals court basically admitted that it was waiting out Congress’ pending actions.

“If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised,” the decision reads.

Early indicators suggest that while civil rights groups see the House version of the USA Freedom Act as a positive step towards the right to privacy, there is still room for litigation. For instance, neither the American Civil Liberties Union (the plaintiff in the case that deemed collection illegal) and the Electronic Frontier Foundation (who also has an open suit against the NSA) have come out in favor of the bill. Both have declared themselves neutral, even while acknowledging the bill is moving the conversation in the right direction.

Another wrinkle: as Fusion previously reported, there are many lawsuits that can potentially be filed against the NSA following the previous ruling, which essentially stated that any Verizon customer has standing to take the NSA to court over its illegal metadata collection program. A Verizon spokesperson declined to comment on the possibility of launching a lawsuit of its own, following the ruling.

It is a possibility that the appeals court acknowledged in its previous opinion.

“If Congress fails to reauthorize §215 itself, or reenacts §215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government,” the decision reads, emphasis ours.

“We believe that such issues will be best addressed in the first instance by the district court in due course,” it added. That means… expect more of this in the courts.

3) Congress allows Section 215 to expire without passing the USA Freedom Act

No one really is entertaining this possibility. All sides are in too deep. The lone Libertarian wolf who appears to want this to happen is Republican Senator Rand Paul, also a presidential hopeful for 2016.

Paul is broadly credited (or blamed) as the reason the key sections of the Patriot Act expired early this morning. He took procedural roadblocks to stop the Senate’s consideration of the USA Freedom Act, drawing the ire of his fellow Republicans. The Daily Beast labeled him “GOP Enemy No. 1” for the move.

The broader fight against the Patriot Act is consistent with some of the issues Paul has been most passionate about throughout his political career, namely protecting Americans from what he sees as an overreaching federal government. He argues that the act doesn’t go far enough to protect freedoms, and so he is blocking it as a matter of principle. Nevertheless, he conceded on Sunday that he could do little to stop the planned Senate vote from going forward on Tuesday.

“People here in town think I’m making a huge mistake. Some of them, I think, secretly want there to be an attack on the United States so they can blame it on me,” Paul said of his colleagues on the Senate floor on Sunday.

Let’s hope not.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.