One of the National Security Agency’s (NSA) most controversial spying programs will lose its legal authority to continue after June 1 unless Congress acts soon. But this development would not necessarily mean the NSA’s bulk collection of Americans’ phone data will cease.

The provision of the USA Patriot Act (pdf) that allows the data collection, Section 215, is set to expire on June 1, and so far, lawmakers haven’t adopted legislation extending this authority. However, the Obama administration could continue the NSA program by drafting a legal memo authorizing the secretive Foreign Intelligence Surveillance Court (FISC) to in turn approve the bulk collection effort until Congress does act.

“If Congress,” Judge James Boasberg of the FISC wrote, “has not enacted legislation amending [Section 215] or extending its sunset date, the government is directed to provide a legal memorandum … addressing the power of the Court to grant such authority beyond June 1, 2015.”

Some officials within the administration are hesitant to use “such circular justification,” Dustin Volz of National Journal wrote, to keep the bulk collection going. At the same time, some privacy advocates believe the administration will take action to keep the program in operation, fearing the loss of intelligence.

“There’s no way that the federal government is going to respond to this by submitting a legal memorandum that says it does not have the authority to do any more spying,” Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, told National Journal.

The publication also reported that the top lawyer for the Office of the Director of National Intelligence, Robert Litt, said last month that the administration had no contingency plan for continuing the spying program if Congress failed to act.

But he added, “We’ll figure out what we’re going to do.”

-Noel Brinkerhoff

To Learn More:

Court: NSA Spying May Continue Even If Congress Lets Authority Expire (by Dustin Volz, National Journal)

NSA Phone Data Collection Could Go On, Even if a Law Expires (by Charlie Savage, New York Times)

Privacy Board Report on Mass Telephone Surveillance Divides on Party Lines (by Noel Brinkerhoff, AllGov)