PCLOB's Rachel Brand on Section 215

The heated debate in Congress about whether to reauthorize Section 215 of the Patriot Act has focused mainly on the National Security Agency's bulk collection of telephone records ever since details of that program were leaked to the press. As a member of the Privacy and Civil Liberties Oversight Board, an independent federal oversight agency, I extensively reviewed that program, including still-classified information about how it works. I believe it is critical that whatever Congress decides, this debate should be based on solid facts rather than rhetoric. Many important facts and considerations have, unfortunately, not received sufficient attention. First, the question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself. This authority was enacted after 9/11 to remedy the problem that officers conducting foreign intelligence investigations of international terrorism and espionage did not have a basic investigative tool available even in ordinary criminal investigations. The telephone records program conducted by the NSA is only one application of that authority. If Congress allows Section 215 to expire, it will not just eliminate that program; it will do away entirely with an essential investigative tool.