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Congress Let Spy Powers Expire Last Month, Which Is Having Almost No Effect On Current Spying

Published: April 7, 2020
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Source: Tech Dirt

from the hey-you-guys-need-to-knock-it-off-whenever-it's-convenient-for-you dept

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The authorities created by the US Patriot Act -- specifically, the bulk collection of business records and roving wiretaps -- both expired on March 15th. More pressing issues backburnered the reauth, which is probably preferable to the alternatives: a blanket reauthorization rush job or some rights-wrecking abomination tacked onto a must-pass coronavirus response bill.

But letting these authorities expire doesn't change much of anything, especially since the FISA Court is presumably on limited duty like other courts in the nation while waiting for the pandemic curve to flatten a bit. It's still business as usual for any surveillance business in progress before the March 15th cutoff, as Julian Sanchez explains.

A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.

This means agencies can initiate surveillance using these expired authorities so long as they backdate the impetus for the investigation. We're in the midst of a never-ending War on Terror, so any targets loosely associated with the terrorist networks we've targeted for decades will remain surveilled under expired authorities. And that will continue up until Congress gets around to actually reauthorizing the surveillance that never stopped.

In practice, this means all sorts of surveillance is continuing without explicit Congressional permission. But that's the way the law was written. The escape hatch says nothing needs to stop even when nothing governing surveillance says it's alright to keep going. Securing the nation is too important to be left in the hands of three branches. Congress has cut itself out by not handling the reauthorization in a timely manner. And the FISA Court can't do anything about since it's forced operate (and authorize) in the void Congress created.

There's a lot of power in play here and it's being handled irresponsibly. Just when the FBI has shown it can't be honest with the FISA Court (and hasn't been for most of two decades), no one's stopping anyone from doing anything, much less instituting needed reforms. While tackling the virus may have been the more important job, it's disheartening to know there's really no expiration date on surveillance authorities, no matter what might be said in Congress during these periodic battles over domestic surveillance.

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