Section 215 of the Patriot Act expires today.  Section 215 addresses the Federal Bureau of Investigation’s ability to gather business records.  In 2006, after passage of amendments to the Patriot Act, the Bush administration used Section 215 as the legal basis for gaining approval from the Foreign Intelligence Surveillance Court to continue to allow the National Security Agency (“NSA”) to collect data from all American citizens’ phones. 

In early May, the United States Court of Appeals for the Second Circuit found that the NSA’s bulk telephone metadata program is not authorized under Section 215.  Following this decision, the U.S. House of Representatives passed the USA Freedom Act, which would amend the Patriot Act and prohibit the NSA from collecting bulk telephone metadata.  The bill does not, however, prohibit the agency from accessing the information through telephone providers when the agency obtains a judicial order or when it accesses the information for certain emergency situations.

Right before the Senate adjourned for the Memorial Day recess, it voted against bringing the House’s USA Freedom Act to the floor for debate.  It also rejected a bill introduced by Senator Mitch McConnell (R-KY) that would extend the NSA’s program for two months.  Senator McConnell was advocating for an extension and urging other members of the Senate to reject the USA Freedom Act.  On the other hand, Senator Rand Paul (R-KY) was urging members of the Senate to bring the USA Freedom Act to the floor with amendments that would place greater restrictions on the government’s access to bulk phone data. 

The Senate reconvened yesterday to discuss the NSA bulk telephone metadata program.  Before adjourning for the night, the Senate voted 77 to 17 to proceed with a vote on the House’s USA Freedom Act.  As the NSA shuts down its program, the Senate will discuss amendments to the USA Freedom Act and vote on it sometime this week.

Reporter, Jennifer Raghavan, San Francisco, CA, +1 415 318 1234, jraghavan@kslaw.com.