Fear and loathing of the USA PATRIOT Act

Reuters/Jason Reed
Several controversial provisions of the Patriot Act are set to expire Sunday: The Obama administration insists that letting the law lapse would harm US security, while critics counter that it would be a big step in ending NSA abuses as exposed by Snowden.

Should it stay, or should it go?

The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT) Act was adopted in October 2001, six weeks after the 9/11 terror attacks. Its most recent extension was in 2011.

Several provisions of the Patriot Act are expiring – “sunsetting,” in government parlance – on May 31. Among them is the notorious Section 215, authorizing bulk collection of Americans’ data, which a federal court ruled illegal earlier this month. According to government officials, it has been used almost 200 times per year.

Other provisions set to expire June 1 enable the government to conduct “roving wiretaps” of suspects who switch phones, or spy on “lone wolf” individuals who are not affiliated with an international terrorism organization. FBI director James Comey has called those tools “essential,” while Attorney General Loretta Lynch argued they were “vital and uncontroversial” tools used to “combat terrorism and crime.”

Compromise Possible?

On Friday, President Obama demanded that the Senate to approve a House-backed law that would extend the expiring provisions of the Patriot Act and redefine the bulk collection of data.

The only thing that is standing in the way is a handful of senators who are resisting these reforms,” he told reporters in the Oval Office, after a meeting with Attorney General Lynch.

I don't want us to be in a situation in which for a certain period of time those authorities go away and suddenly we are dark,” Obama said. “And heaven forbid we've got a problem where we could have prevented a terrorist attack or apprehended someone who is engaged in dangerous activity but we didn't do so simply because of inaction in the Senate.”

He was referring to HR 2048, also known as the USA Freedom Act, passed by the House in a 338-88 vote on May 13. It would do away with Section 215 programs over six months, but give phone companies the responsibility of maintaining phone records that the government could search. The legislation also includes provisions for “roving wiretaps” and “lone wolf” surveillance demanded by the FBI and the DOJ.

Critics blasted the Freedom Act as an inadequate check on government’s mass collection of Americans’ data. Representative Justin Amash (R-Mich.) described it as a “step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment.”

Brave New World without Section 215

Senator Rand Paul (R-KY), an outspoken opponent of NSA’s bulk spying programs, said that President Obama could end the illegal surveillance with an executive order, if he wanted.

Why doesn’t he stop it? What’s he waiting for? He started it on his own, he should stop it…I’ve asked the president repeatedly to stop the program,” Paul told CBS’ This Morning. As for the data collected by the NSA under Section 215, “I think the information was collected illegally and should be purged,” Paul told Fox & Friends.

In a 10-hour filibuster on May 20, Paul effectively ensured the House would go into recess before the Senate could debate USA Freedom Act. The Senate subsequently rejected both the Freedom Act and Senate Majority Leader Mitch McConnell’s attempt to pass a two-month extension of the Patriot Act.

The sunset of Section 215 would undoubtedly be a significant political loss for the intelligence community, and it would be a sensible first step towards broader reform of the surveillance laws,” wrote Jameel Jaffer, Deputy Legal Director at the American Civil Liberties Union, “but there’s no support for the argument that the sunset of Section 215 would compromise national security.”

Scary New World without Section 215

That has not stopped government officials from painting an apocalyptic picture of what would happen if a few Patriot Act provisions were allowed to “sunset” this weekend. Reporters summoned to the White House were told by three senior Obama Administration officials – on condition of anonymity – that doing nothing amounted to “playing national security Russian roulette,” reported The Hill.

Glenn Greenwald, the journalist who has helped publish Snowden’s revelations since 2013, blasted the press for being mere stenographers to anonymous White House officials.

It’s just government propaganda masquerading as a news article, where anonymous officials warn the country that they will die if the Patriot Act isn’t renewed immediately, while decreeing that Congressional critics of the law will have blood on their hands due to their refusal to obey,” Greenwald wrote in The Intercept. “In other words, it’s a perfect museum exhibit for how government officials in both parties and American media outlets have collaborated for 15 years to enact one radical measure after the next and destroy any chance for rational discourse about it.”

By Friday, however, the New York Times was backing the expiration of Section 215 and other Patriot Act provisions. The editorial board even praised – after a fashion – Edward Snowden, calling him a “whistleblower” and saying his revelations “prompted the Obama administration to start a review of intelligence gathering techniques and vow to reform the program. They also led lawmakers, for the first time, to have a meaningful exchange of views about domestic surveillance.”

There is no question that the federal government should have broad authority to investigate terrorism threats and suspected spies operating in the United States,” the NY Times editors wrote, “but not at the expense of meaningful judicial review.”

How to shut down massive surveillance

According to a senior official who spoke with reporters at the White House, the NSA has a team on “hot standby”, preparing to begin shutting down its spy servers at 4 PM on Sunday. “Rebooting would take about a day, the official said, and would entail going back to the telecommunications providers and obtaining a court order,” reported the New York Times.

About that time, the Senate will be holding an extraordinary session called by Majority Leader McConnell. Roll call votes may start by 6 PM. In case the Senate passes the USA Freedom Act, or even McConnell’s proposed outright extension of the existing Patriot Act, the NSA could “resume operations without disruption,” according to The Hill.

We’re in uncharted waters,” said one senior official. “We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.”

It’s about more than just the PATRIOT Act

Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, argued not just for letting Section 215 expire, but for abandoning attempts to pass the USA Freedom Act.

If the House reform passes, Granick wrote in Forbes, “it’ll be suspicionless spying as usual until the next big surveillance provision, section 702 of the FISA Amendments Act sunsets at the end of 2017.”

The bill was put together before a federal court ruled Section 215 unconstitutional, she said, and before a report by the Justice Department’s Inspector General said the FBI was “unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders.”

Julian Sanchez, a Senior Fellow at the Cato Institute, said that letting Section 215 expire would “provide the illusion of triumph even while leaving much of the machinery of surveillance intact.”

Writing with Vice’s Motherboard blog, Sanchez argued for passing the USA Freedom Act as a step towards reforming the spying programs, noting that the vast majority of the Patriot Act was permanent, with vague and overlapping authorities that could let the government continue to spy pretty much at will.

For instance, if the FBI wanted to obtain phone, email, internet and financial records, it could just issue itself National Security Letters again, without seeking judicial approval. Massive surveillance inside the US under Section 702 of the FISA Amendments Act, or the foreign surveillance under Reagan’s Executive Order 12333, would remain untouched as well, Sanchez noted.