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Spying forever

Even if the Patriot Act expires, the NSA could continue to gather data on Americans' private phone calls.

Ever since former National Security Agency contractor Edward Snowden's revelations last year that the NSA was collecting information on the phone calls and emails of millions of U.S. citizens without their knowledge or consent, lawmakers have been assuring the public they will act to amend the law to protect Americans' privacy. But they haven't done so yet. An effort to reauthorize and reform the USA Patriot Act in the 113th Congress failed, and even if the act expires on schedule next summer, it might not be enough to end the spying programs the law spawned.

The Patriot Act was adopted with relatively little debate in the months after the terrorist attacks of Sept. 11, 2001. It gave the NSA broad authority to track al-Qaida suspects in this country and abroad, but until last year most people remained unaware of the extent of its activities. It was only after Mr. Snowden revealed the agency was scooping up and storing information about the phone calls and emails of millions of people who had no connection to terrorism investigations that the NSA's massive invasion of citizens' privacy came to light.

The scope of the NSA's snooping was breathtaking. A recent report by the American Civil Liberties Union found that Section 215 of the act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. That's totally contrary to a traditional search and seizure, which requires authorities to show probable cause that a crime has been committed.

Section 206 of the act allows the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped nor even what it is looking for. Another section of the law gives give secret courts carte blanche to spy on non-U.S. citizens for virtually any reason at all. All three provisions need to be revised to bring them into line with the privacy protections guaranteed under the Fourth Amendment of the Constitution.

Yet it appears that may be easier said than done. Both advocates and critics of the law had long assumed that if Congress didn't reauthorize or amend the act it would automatically expire when its sunset provision kicked in on June 1, 2015. But the New York Times reported recently on a little remarked clause stipulating that Section 215, along with another section of the act, end on that date "except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015."

In effect, that means the NSA could continue spying on any person or organization still under investigation when the law expired. But since the agency has been collecting data on virtually everyone over the years, it could theoretically keep right on doing what it's been doing virtually indefinitely.

Congress needs to deal with that legal conundrum at the same time it amends other troublesome sections of the law. There's bipartisan support in both the House and Senate for rewriting the act in a way that limits the agency's blanket spying authority to people reasonably suspected of terrorist activities. That is something we hope the new Republican majority in Congress will take as one of its first matters of business when it convenes in January. There is surely a way to protect Americans' civil liberties without endangering national security. The NSA needs to be able to do its job in order to protect the country, but a greater threat to our freedoms than terrorism would by an out of control spy agency subject to effective oversight by neither Congress nor the courts.

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