Official: Bulk collection would halt without Patriot Act extension

The government’s bulk collection of U.S. telephone records would end if portions of the Patriot Act are not extended, the top lawyer at the Office of the Director of National Intelligence (ODNI) said Wednesday. 

ODNI General Counsel Robert Litt noted the “substantial political hurdle” involved in continuing the program if Congress does not renew portions of the Patriot Act, expiring in June, that authorize its existence. Some have suggested that collection could continue even if the authority was not reauthorized. That has remained an unlikely possibility, however, due to the backlash it would receive. 

{mosads}”I’m hopeful that we never have to confront those issues,” Litt said without completely ruling out the idea during a discussion at the Brookings Institution. 

Advocates see the Patriot Act’s sunset as an opportunity to pass National Security Agency reform, including an end to the government’s bulk collection of Americans’ telephone metadata. 

Litt said he his “hopeful” Congress can get enough votes to pass reform. 

The Obama administration previously endorsed Sen. Patrick Leahy’s (D-Vt.) USA Freedom Act, which stalled in the Senate late last year.  

“I am hopeful that we will get that passed,” Litt said. “If it sunsets, if it goes away, the program will end, we’ll also lose other authorities that are important under the same section, which had nothing to do with bulk collection whatsoever.” 

Litt’s office has not had a chance to engage with the new Congress, he said, adding that Leahy has yet to reintroduce his proposal. 

“So, at this point, we are still far enough away that we are not doing extensive contingency planning other than the legislative way to get something passed that will accomplish the president’s goals,” Litt said. 

During his speech, Litt outlined a number of modest surveillance reforms that were detailed in a report a day earlier. 

Those included requiring the government to delete content incidentally collected about Americans if it is found to contain no real intelligence value. A similar policy would apply to the deletion of foreigners’ information after five years. 

During his speech, Litt highlighted a new policy that bars information incidentally scooped up about Americans from being used in trials. Large exceptions to that provision include national security crimes as well as crimes involving death, kidnapping, substantial bodily harm, crimes against a minor, destruction of critical infrastructure, cybersecurity crimes, transnational crimes and human trafficking. 

It is uncommon for information collected under the program to be used during trials because that would require exposing the way it was obtained, Litt said. He said he was unaware of any previous case in which that type of information was used in a trial.

Litt also reiterated the government’s concerns with technology companies’ recent encryption efforts on their devices that could prevent anyone, include law enforcement with a warrant, from accessing the content without the owner’s permission.  

“I’m not talking about something that would sort of be an ability to sort of break open anybody’s communication,” he said.  “But something that says, ‘OK, you can encrypt this, you can send this secure, but if we have lawful authority, we have the ability to decrypt it.'”

“I’m not a cryptographer, but I have to believe that there is a middle ground there,” he said.