What happens if the PATRIOT Act expires?

With the Senate stuck over whether and how to reform the PATRIOT Act before parts of it expire within days, officials across Washington are starting to contemplate a future in which lawmakers don’t act -- and key surveillance provisions simply die. If Congress doesn’t renew the law -- which expires on May 31, during the Memorial Day recess -- the National Security Agency won’t be able to conduct any massive new sweeps of phone records, which Senate Majority Leader Mitch McConnell (R-KY) and other national security hawks have said are crucial to fighting terrorist threats like ISIL. According to a grandfather clause in the PATRIOT Act, however, the NSA can continue investigations it’s already started based on the phone data.

The question of what happens if pieces of the PATRIOT Act simply disappear is taking on growing significance as the congressional stalemate continues. It’s not clear if either a straight reauthorization of the PATRIOT Act or the House-passed surveillance reform bill, which is backed by the Obama Administration, has the votes to pass the Senate, and the House has already left for the Memorial Day recess. According to Stewart Baker, a former Homeland Security official under President George W. Bush and defender of the NSA’s phone records program, a sunset is “the worst outcome … because it means the bulk metadata collection project ends and the FBI loses additional authorities.” Others, though, suggest the sky won’t fall and point to previous admissions from the intelligence community that the telephone metadata program has not been essential in preventing any terrorist attacks.