Section 215 of the USA PATRIOT Act (2001) expanded the Foreign Intelligence Surveillance Act (FISA) authority for seizing business records. This provision has served as a legal basis for the government’s controversial collection of bulk telephone metadata. Section 215 is set to expire on June 1, and Congress is now considering whether to reauthorize or amend the provision. Last week, the Second Circuit Court of Appeals ruled that “the bulk telephone metadata program is not authorized by Section 215.” This ruling, coming at this time, is likely to impact congressional considerations concerning the reauthorization or amendment of Section 215.

Legal analysts have summarized the effects of Section 215 as follows. Before 2001, FISA authorized the government (with a FISA Court order) to seize business records of certain enterprises, namely those involving travel, lodging, and storage. Section 215 of the USA PATRIOT Act amended FISA to expand this seizure authority by removing the limitations on the types of businesses. It also expanded the items subject to seizure from “records” to “any tangible things.” After subsequent amendments and reauthorizations, Section 215 now enables the seizure of business records or other “tangible things” that are “relevant to an authorized investigation” concerning foreign intelligence, international terrorism, or clandestine intelligence activities.

Through a series of unauthorized disclosures and government declassifications, the public learned that Section 215 facilitates government acquisition of telephone metadata in bulk (i.e., numbers dialed, time and duration of calls). Since then, the legality of Section 215 has been strongly debated, with critics asserting that the government’s implementation of Section 215 contravenes the statute and/or violates the Fourth Amendment rights of telephone companies or their customers.

In response to the public debate, the Obama Administration implemented some changes to the government’s existing collection program and asked Congress to authorize an alternative program. Under that new program, the government would not take possession of the bulk metadata. Instead, absent an emergency, the data would remain with telephone companies, and the government would obtain data pursuant to specific FISA Court approvals. The USA FREEDOM Act is intended to (among other things) implement central features of the alternative program. Last year, a previous version of that bill passed the House of Representatives but not the Senate. Congress is currently considering a new version of the bill.

Under current law, Section 215 will expire in three weeks. Before then, Congress could choose one of four options: (1) reauthorize the provision, (2) amend the provision through the USA Freedom Act, (3) amend the provision a la carte, or (4) allow the provision to expire.

Significantly, the Second Circuit Court of Appeals recently ruled that the government’s bulk collection of telephone metadata “exceeds the scope of what Congress has authorized and therefore violates Section 215.” As several legal observers have noted, the Court held that this metadata program is not “relevant to an authorized investigation” because the collection program is not customized to probe particular facts of a specific inquiry (and hence is not limited by those facts). Rather, the telephone metadata program supports an overall counterterrorism mission. The Court also held that previous congressional reauthorizations of Section 215 did not ratify the government’s broad interpretation of “relevance” because, at the time of reauthorization, Congress may not have been aware of that interpretation. The Court did not rule on the collection program’s constitutionality, nor did it order an end to the program.

The Second Circuit’s opinion has notable implications for Congress’ reauthorization options. Congress could still authorize the existing bulk metadata collection program, but if the Second Circuit’s ruling stands, doing so could require a new, express authorization rather than a reauthorization. The Court stated that, “[i]f Congress fails to reauthorize Section 215 itself, or reenacts Section 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end….” Prior to the Court’s ruling, Senator McConnell introduced (what was thought to be) a “clean reauthorization” bill to preserve Section 215, without amendment, for several more years. Before the Second Circuit’s ruling, such a reauthorization might have suggested that Congress approved the government’s bulk metadata collection program. After the Court’s ruling, however, a “clean reauthorization” of Section 215 could mean that Congress is ratifying the Second Circuit’s conclusion that the provision does not authorize bulk metadata collection.

Even before the Court’s ruling, the Obama Administration preferred amending Section 215 through the USA FREEDOM Act. The House of Representatives seemed to prefer this option as well. Given the potential difficulties of approving a new, express authorization of the government’s metadata collection program before June 1, the USA FREEDOM Act may become the likely vehicle for congressional action.

The third option, independent amendments to Section 215, might result from congressional compromises following the Second Circuit ruling. Given Congress’ short timeline, though, this option may be difficult to effectuate. If Congress pursues this option, the practical outcome of that legislation will depend on the nature of the specific amendments. If such a compromise cannot be reached before June 1, Congress could pass a short-term compromise to provide more time for developing a longer-term solution.

The final option would be for Congress to allow Section 215 to expire. Some observers have previously suggested that, if Congress allowed Section 215 to expire, the bulk telephone metadata collection program might nevertheless endure because Section 215 authorizes collection to continue so long as the metadata remain relevant to an investigation that started prior to the June 1 expiration. However, after the Second Circuit’s opinion, this possibility is diminished since the Court declared that Section 215 never authorized the bulk metadata collection.

Of course, many of these implications depend on whether Congress assumes that the Second Circuit opinion will stand. It is possible that another court may reach a different conclusion. If so, the intertwined statutory, constitutional, and legislative landscape may become even more complex.

The opinions expressed in this article are those of the author and do not necessarily reflect his institutional affiliations.