NEWS ANALYSIS: A Surveillance Gap, but Ways Around It, nytimes

WASHINGTON — For the first time since the aftermath of the terrorist attacks of Sept. 11, 2001, Americans will again be free to place phone calls — to friends, lovers, business associates, political groups, doctors and pizza restaurants — without having logs of those contacts vacuumed up in bulk by the National Security Agency.

And for the first time in nearly 14 years, if government agents identify new phone numbers that they suspect are linked to terrorism, they will have to subpoena phone companies for associated calling records and wait for the response to see if anyone in the United States has been in contact with that number. The N.S.A. can no longer simply query its database for the information.

This unusual situation may last only a few days, until Congress can reach an accommodation over three counterterrorism laws that expired at 12:01 a.m. Monday.

Nonetheless, the fact that Congress allowed the laws to lapse — the most important of them is the purported legal basis for the bulk records collection program — is an extraordinary moment in the story of the tensions between post-9/11 policies and privacy rights. It has led to heated warnings in the political realm about exposing the country to heightened risk of attack.

A few hours before the Senate convened on Sunday, John O. Brennan, the C.I.A. director, warned on the CBS program “Face the Nation” that if lawmakers let those laws lapse, the F.B.I. would “not have the ability then to track these various elements that we are looking at who are trying to carry out attacks here in the homeland.”

But interviews with law enforcement and intelligence officials about what they will do in the interim suggest there are multiple workarounds to the gap.

One of the expired laws permitted wiretap orders of “lone wolf” terrorism suspects who are not part of a foreign group, a provision that has apparently never been used. A second permitted “roving” wiretap orders that follow suspects who change phones, a provision that apparently has been used only rarely.

The third permitted court orders requiring businesses to turn over records that are relevant to a national security investigation, the provision known as Section 215 of the Patriot Act. In addition to the bulk phone records program, the F.B.I. used Section 215 about 160 times last year to obtain particular business records, like suspects’ Internet activity logs. 

All three of the expired laws contained a so-called grandfather clause that permits their authority to continue indefinitely for any investigation that had begun before June 1. - Read More at NYT

A Gap in Surveillance, but Ways Around It - More