H.R. 2048

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Last week, the U.S. Court of Appeals for the Second Circuit ruled that the bulk telephone metadata program run by the [NSA] is not authorized by Section 215 of the Patriot Act and is thus unlawful. The ruling is a big win for privacy and civil liberties advocates who have long argued that Section 215 clearly does not contemplate the type of mass collection we now know is occurring. But the win will be short-lived if H.R. 2048 [..] that’s scheduled to be considered by the House of Representatives this afternoon, becomes law.

Section 215 authorizes the government to collect records and other “tangible things” that are "relevant" to a terrorism or foreign intelligence investigation. To support the bulk collection of data pertaining to millions of law-abiding Americans, the government has effectively claimed that all records everywhere are potentially relevant to a current or future investigation, and thus all records are fair game for collection. In its ruling, the Second Circuit had little choice but to reject the government's broad interpretation of "relevant," given that the rest of the statute gives no indication Congress ever contemplated collection on such a mass scale.

So far, so good.

But H.R. 2048 threatens to undo much of the progress resulting from the Second Circuit’s opinion. The bill's sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends "bulk" collection. It's true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.

H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.

Indeed, the Second Circuit encouraged Congress in reforming Section 215 to make a “congressional judgment as to what is ‘reasonable’ under current circumstances.” Unfortunately, “specific selection term” is defined so broadly under the bill as to have little effect on narrowing the scope of items the government may obtain through a 215 order.

A “specific selection term” may be a specific person (including a corporation, such as Western Union), account, address, or personal device, but it also may be “any other specific identifier,” and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it's not the only identifier used as part of the specific selection term. In other words, the bill doesn't let the government require Verizon to turn over all its records without limitation, but nothing appears to prevent the government from requiring Verizon to turn over all its records for all its customers in the state of New York. Only a politician or bureaucrat wouldn't call that "bulk."