Section 215 of the Patriot Act is only one of a number of largely overlapping surveillance authorities, and the loss of the current version of the law will leave the government with a range of tools that is still incredibly powerful:
Pen Registers: These allow the government to collect “dialing, routing, addressing, or signaling information” including telephone numbers dialed and Internet metadata such as IP addresses and email headers. There are two pen register statutes, one for foreign intelligence surveillance and one for law enforcement. Both rely require only that the pen register be likely to obtain information relevant to a national security or criminal investigation respectively. Until the end of 2011, the NSA used the Foreign Intelligence Surveillance Act (FISA) pen register statute to conduct mass surveillance of Internet metadata, much as it still uses Section 215 for mass collection of telephone records.
The Pre-Patriot Act Business Records Provision: Before the passage of the Patriot Act in 2001, FISA contained a provision allowing the government to obtain business records from transportation carriers and storage facilities. Harley Geiger of the Center for Democracy and Technology has pointed out that under a June 1 sunset, FISA would simply revert to this provision.
An ECPA “D Order”: Under Section 2703(d) of the Electronic Communications Privacy Act (ECPA), the government can get a court order for information from ISPs or other communications providers about their customers, including the sorts of metadata the government gets with Section 215. To get a D Order, the government must provide “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records or other information sought, are relevant and material to an ongoing criminal investigation.”
Grand Jury Subpoenas: Given that Section 215 explicitly says that the FISA Court (FISC) “may only require the production of a tangible thing if such thing can be obtained” with a grand jury subpoena, it’s apparent that a grand jury subpoena is a reasonable substitute, at least where a grand jury can be convened.
National Security Letters (NSLs): Similar to subpoenas, NSLs allow intelligence agencies to collect records from a range of entities including telecommunications providers, financial institutions, credit reporting bureaus, travel agencies and others. Nearly all NSLs include self-certified gag orders, which EFF has successfully challenged as unconstitutional. Nevertheless, the FBI and other agencies can use NSLs to collect much the same information as Section 215, although the government has also misused NSLs to obtain communication records not authorized by the NSL statute.
Administrative Subpoenas: Many federal agencies have the authority to issue subpoenas for customer records in their normal course of business. These authorities are extremely widespread, comprising 335 different statutes by one count.
FISA Warrants: Under FISA, the government can get warrants from the FISC for electronic surveillance and physical searches in the context of national security investigations. Although these require a higher showing—probable cause—statistics compiled by EPIC show the FISC routinely issues them, and has done so since FISA was passed in 1978.