Flip the Patriot Act's Kill Switch
& Patrick Toomey, Senior Staff Attorney, ACLU National Security Project
This piece originally appeared at Slate.
Section 215 of the Patriot Act, which the National Security Agency has used for more than a decade to collect the call records of hundreds of millions of Americans, is scheduled to expire in four weeks. Pro-surveillance legislators, including the senate majority leader, want Congress to reauthorize the provision in its current form. Pro-privacy legislators on both sides of the aisle want Congress to scale the provision back. Unless legislators can agree on far-reaching reforms, the better course is simply to let Section 215 expire.
Congress enacted the Patriot Act in October 2001, just weeks after the Sept. 11 attacks. Few legislators read the proposed law before they voted for it. The bill was hundreds of pages long and it amended statutes that were notoriously complicated. The intelligence community said it needed new authority, and few legislators thought it was the right time to ask questions.
But precisely because so few questions were being asked, legislators insisted that some of the Patriot Act's authorities, including Section 215, include "sunset" provisions. The point of including these provisions was to ensure that the law would be re-evaluated once its implications—including its civil liberties implications—were better understood, and to ensure that surveillance authorities whose limits were unclear from the outset wouldn't become permanent unless the government could make a strong case for their necessity. Even in the climate of panic that prevailed in the weeks after the Sept. 11 attacks, Congress wanted the strong presumption to be that the era of Patriot Act surveillance would one day come to an end.
Unless Congress can coalesce around much broader reforms than are on the table right now, the best way to begin the reform effort is by letting Section 215 expire.
The decision to include sunset provisions turns out to have been a prudent one. The Patriot Act has enabled a truly dramatic expansion of the government's surveillance activities—an expansion far greater than even the law's critics predicted. Relying on authority granted by the Patriot Act, the FBI issued hundreds of thousands of "national security letters," each one a demand for sensitive information, and each one accompanied by a "gag order" prohibiting the recipient from disclosing the letter's existence. It monitored millions of Americans' Internet activities—tracking, among other things, to whom they sent emails, and who sent emails to them. It conducted thousands of secret searches of homes, offices, and other premises in the United States—an astounding 6,471 such searches in 2013 alone—the vast majority of them in cases having nothing to do with terrorism. A now-infamous slide disclosed by Edward Snowden is titled "Collect it All," and this chilling slogan supplies an entirely fair characterization of what the government has been trying to do.
The call-records program is just another manifestation of the same mindset. Since 2006, the NSA has been using Section 215 to collect Americans' call records en masse. At the close of business each day, the major telecommunications companies provide the NSA with a record of who called whom, when, and for how long. The resulting database is an account of Americans' most sensitive associations—of calls between husbands and wives, doctors and patients, lawyers and clients. The program is an immense intrusion into the privacy of millions of people, but there is no evidence that it has made us more secure. To the contrary, two official review groups have concluded that the program hasn't been crucial in any terrorism investigation. And the president himself has acknowledged that the government can track the phone calls of suspected terrorists without wholesale collection of innocent Americans' call records.
Some government officials have suggested that allowing Section 215 to expire would require the government to abandon not just the call-records program but other investigative activities whose legitimacy no one would question. But the government has never identified these purportedly legitimate activities, even in general terms, and its vague warnings, made for the most part in not-for-attribution statements to the media, are not sufficient to justify the extension of a surveillance power that has already been so grossly abused. Moreover, many of the legitimate things the government can do with Section 215 can be accomplished in other ways—with grand jury subpoenas or with pen registers, for example. Allowing Section 215 to expire wouldn't force the government to stop doing those things; it would simply force the government to use other legal means where it was previously using Section 215.
The more compelling argument against allowing Section 215 to sunset comes from those who believe that Congress should leverage the opportunity presented by the scheduled sunset to enact a broad reform package. But while the proposed bill—the USA Freedom Act—includes worthwhile elements, it doesn't go nearly far enough. (The ACLU neither supports nor opposes it.) It would allow the government to continue storing innocent people's records in vast intelligence databases. It would require the government to be more transparent about its use of some surveillance authorities, but it would allow the FBI to keep secret some of the information the public needs most. And while it would end the bulk collection of call records under Section 215, it would leave the government with the authority to engage in the broad collection of other kinds of sensitive records.
We appreciate the work of the legislators who are championing the bill—Sens. Patrick Leahy and Ron Wyden, and Reps. John Conyers and Jim Sensenbrenner, in particular, deserve credit for their tireless work in the service of surveillance reform—but they have had to make deep concessions to the intelligence community in order to win its support. We can't help but worry that the vague language in the bill's key provisions will provide a new lease on life to surveillance programs that haven't yet been—and may never be—disclosed to the public.
We can't afford to squander the opportunity that the scheduled sunset of Section 215 affords. Thanks to Edward Snowden, Americans now know that the government's surveillance activities are far more extensive than is defensible in a free society. The current debate in Congress reflects a growing bipartisan consensus that reform is urgently needed. Unless Congress can coalesce around much broader reforms than are on the table right now, the best way to begin the reform effort is by letting Section 215 expire. Letting the provision die wouldn't itself accomplish all of the changes that are necessary—not even close. But it would be a first step toward the kind of systemic reform we desperately need, and it would send an important and overdue message that the era of unchecked government surveillance—the era of the Patriot Act—is at long last coming to an end.