On Wednesday, I wrote about what the USA Freedom Act does and made a mistake that most analysts have made, saying that the new law amends the Patriot Act provisions that were expiring at the end of May. That was true before midnight on May 31. But on June 1, that all changed. Because, thanks to Mitch McConnell's bungling the whole issue, those three parts of the Patriot Act actually did expire. Which means the new law, the USA Freedom Act, amends language that doesn't exist anymore. Megan Graham at Just Security caught this little problem, and explains.
As a preliminary matter, it's important to remember that the USA Freedom Act is not a standalone set of authorities, but is rather really just a set of instructions on how to change a preexisting statute. It contains detailed orders to remove clauses, add semicolons, reorder the existing text, and (occasionally) to add wholly new provisions to the Foreign Intelligence Surveillance Act (FISA), as that Act has been amended over time. So the question of what text you’re amending really matters for how the federal law will read in the end. If the USA Freedom Act instructs someone to effect changes to a provision that doesn’t exist or requires edits to the wrong section, the US Code won’t make any sense (or at least it will make less sense than it currently does), and the law may create substantive gaps in either its surveillance authorities or constraints.
This gets a little weedy, getting into the legislative code in FISA, the FISA Amendments Act which amends FISA, and the Patriot Act. Graham uses the example of the business records provision in the Patriot Act at 50 USC § 1861, which expired at 12 AM the morning of June 1. That code no longer being applicable, the code reverts back to how it read on October 25, 2001. The part of the code in the USA Freedom Act that reforms the Patriot Act points to Sec. 1861, but the old Section 1861—what the law reverts to—doesn't apply to business records. It doesn't have the language that the USA Freedom Act is trying to amend. That means, as Graham says, "the US Code is about to get a little weird."
Once you extrapolate the other changes out, some previous reforms—including most of the clarity in business records orders required by the pre-Monday version of Section 1861(c)(2)—evaporate. The government may also have lost significantly as a result of this confusion. Because Section 215 expired, the government is seemingly back to only being able to request a court order to obtain business records from common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities, per the pre-Patriot Act and current version of Section 1862(a). The USA Freedom Act does not make any substantive edits to the language of that provision, which is more limited than the Section 215 version that allowed collection of “any tangible things” related to an terrorism or intelligence investigation. And therein lies a litigation concern for the government: A librarian or school administrator or director of a medical facility served with a business records order and game for a fight may start asking a lot of serious questions about challenging the order (and maybe even the now-nonsensical nature of the statutory language).
The USA Freedom Act was written on the assumption that the law it was amending was still in effect. It wasn't. So, much of the code isn't going to make sense anymore and Congress is going to have to come back with clarifying amendments. Alternatively, the courts are going to have to do some creative interpreting of the law, relying on (Obamacare exchanges and King v. Burwell alert) the intent of Congress in passing this law rather than the plain text of it (parts of which are even left blank, now). All this because of McConnell's bull-headed attempt to keep an already-declared illegal provision in the law alive. Thanks, Mitch. The extent of your fuck-up just got even bigger.