As you likely know, barring some sort of last minute deal this weekend
(which is a distinct possibility) a few sections of the PATRIOT Act are
set to expire (or, as the cool kids are saying: "sunset"). It is not --
as some have falsely claimed -- the entire PATRIOT Act ending. It just a
few pieces -- with most of the publicity focused on Section 215, which
had been the rationale for the bulk phone records collection that was
the first big leak from the Snowden documents. There's been a bit of a
debate among some about whether or not this sunset is really that
important, beyond the clear symbolism of finally killing off part of the
PATRIOT Act. Two of the people I most respect on privacy and
surveillance issues -- Jennifer Granick and Julian Sanchez -- have come
down on
seemingly different sides of the issue, so it seemed
worth comparing what they had to say (and realizing that they're really
not that far off from each other). Granick takes the position that
letting the provisions sunset is important and a big deal. She admits that it's still limited:
If Congress does nothing, section 215 will sunset. And this is exactly
what reformers should be asking for. The fact is, sunset is the only
thing that will definitely stop massive spying under section 215. It
won’t stop mass surveillance more generally, but killing the law that
NSA and FBI have abused for years is the first step.
But, still, she says, it's important and will have an impact. In
particular, she notes that while basic reform -- a la the USA Freedom
Act -- might have made sense before, "the political winds have shifted."
In particular, she points to the
the big 2nd Circuit appeals court ruling
that noted that Section 215 never really authorized the bulk records
collection program in the first place -- along with a growing number of
elected officials who appear to believe the intelligence community has
gone too far. Her fear, is that if we passed something like the USA
Freedom Act, it will take away any chance at real reform, whereas
sunsetting may force the issue:
Americans want real, not symbolic change. Sixty percent of likely voters
from both political parties believe the rules on surveillance have to
become more restrictive. Groups that were heavily involved in the USAF
compromise negotiations are concerned that if it doesn’t pass, if 215
sunsets, civil liberties advocates will have to struggle to ensure that
something worse than USAF doesn’t become law. But there’s a clear and
present danger that if USAF passes, everyone will pat themselves on the
back for a job well done, suspicionless domestic spying will continue,
the amazing and expansive Second Circuit opinion will be mooted, and
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, and we’re in the same position again. The truth is, this struggle
to be a robust democracy in the face of the threat of terrorism, is here
to stay, regardless of what happens in the next week or so.
So, let’s don’t just do something, let’s stand here. Let’s let 215
sunset. It was unthinkable a month ago. Today it’s likely. In
combination with the Second Circuit opinion, the sunset will,
irrefutably, put laws on the books that will end domestic dragnets.
Then, let’s get serious. Let’s have hearings, really understand all the
spying being done in our name, how the information is being used. Let’s
set up real, comprehensive, robust checks and balances, starting with
declassifying interpretations of law and changing the role of the FISA
judges.
On the flip-side, however, we have Sanchez, who argues that the benefits to sunsetting Section 215
are massively overstated.
He highlights how the intelligence and law enforcement communities have
a number of other authorities under which they have collected similar
"bulk" records, and that they would likely shift to pretty quickly after
Section 215 goes away.
But while "Sunset the Patriot Act" makes for an appealing slogan, the
fact remains that the vast majority of the Patriot Act is permanent—and
includes an array of overlapping authorities that will limit the effect
of an expiration.
While section 215 covers business records, section 214, also known as
the "pen register/trap & trace" authority, covers the acquisition of
communications “metadata” (things like dialed phone numbers and email
or Internet Protocol addresses) in real time.
Years before the current version of the NSA telephone program under 215
was born, the government employed similar arguments to persuade the
secret Foreign Intelligence Surveillance Court (FISC) to bless a bulk
program vacuuming up international internet metadata under the aegis of
section 214. Though that program was ended in 2011—likely at least in
part because NSA was able to obtain much of the same data by collecting
it overseas, with fewer restrictions—the authority is permanent.
Also permanent are National Security Letters or NSLs, which that allow
the FBI to obtain a more limited range of telecommunications and
financial records without even needing to seek judicial approval.
Unsurprisingly, the government loves these streamlined tools, and used
them so promiscuously that the FBI didn’t even bother using 215 for more
than a year after the passage of the Patriot Act. Inspector General
reports have also made clear that the FBI is happy to substitute NSLs
for 215 orders when even the highly accommodating FISC manages a rare
display of backbone. In at least one case, when the secret court refused
an application for journalists’ records on First Amendment grounds, the
Bureau turned around and obtained the same data using National Security Letters.
Even worse, there's actually something of a "grandfather clause" that will let the NSA keep on keeping on anyway:
Even 215 itself doesn’t really expire when it expires. In
theory, the law reverts to a pre–Patriot Act version of the business
records authority that is restricted to records that "pertain" to a
suspected foreign agent or terrorist—language the government is sure to
read as broadly as possible. But thanks to a little-noticed grandfather clause
in the law, the current souped-up version of the law, which covers any
records “relevant” to an authorized national security investigation,
will remain available for investigations already open at the time of
sunset, as well as new investigations into offenses committed before the
sunset. Since the FBI routinely maintains massive “enterprise”
investigations covering entire terror groups, which can continue for
years if not decades, we can expect section 215 to have a lengthy
afterlife.
In short: sunsetting may be symbolic, but it won't really change much
on its own. Sanchez points out that what we really need is real reform -- and
his
fear is that by focusing so much on championing the "sunset," people
advocating for such a solution may miss out on then adding the necessary
surveillance reforms that are needed beyond that:
...the celebration may not only be premature, but counterproductive if
the impending expiration is perceived as a substantial victory in
itself. Some legislators and activists are now so fixated on the
symbolism of sunsetting "the Patriot Act" that they’re even urging
opposition to broader reforms.
Sanchez readily admits that the USA Freedom Act isn't perfect either, but that it does have many features that are important:
That’s not to say that the USA Freedom Act is by any means an ideal
alternative, or that its critics shouldn’t use the sunset of 215 as
leverage to push for stronger reforms. USA Freedom, for instance,
doesn’t even touch massive surveillance within the United States under
section 702 of the FISA Amendments Act, or the even more massive spying
enabled by Executive Order 12333, a Reagan-era order that covers
surveillance conducted outside the United States. But the Freedom Act
does at least cover the full range of Patriot Act authorities that
employ the "relevance" standard, preventing a tricky shell game that
simply moves collection from expired authorities to permanent ones.
The way USA Freedom seeks to do this is also hardly perfect: The law
creates a streamlined process for obtaining specific telephone records
from multiple phone carriers (addressing objections that a massive NSA
database was the only way to avoid the cumbersome necessity of serving
many companies with orders for records stored in incompatible formats)
and requires that, across all these authorities, "specific selection
terms"—like a phone number or billing address—be used to identify the
particular records sought. That means instead of evaluating whether an
entire database might be “relevant” when considered in aggregate, the
court would have to consider whether the government had demonstrated the
relevance of the particular records corresponding to a set of selection
terms.
Both are very interesting reads -- and while they appear to be taking
the opposite viewpoint, they really are a lot closer than they may
appear on the surface. Both are advocating for the need for real
surveillance reform, going beyond just this program. Both recognize that
sunsetting Section 215 is largely symbolic. Where they differ is in
their thinking about how best to get there. Sanchez worries that the
sunset will be seen as "mission accomplished" and real reform won't
occur. Granick fears the same "mission accomplished" feeling with the
too weak USA Freedom Act.
To be honest, they both may have a point. The common message remains there, however:
we need real surveillance reform
to stop an awful lot of bad activity on the part of the intelligence
(and law enforcement) community. Sunsetting Section 215 is a possible
step. USA Freedom is another possible step. Either one, on their own, is
not nearly enough.
That said, the fact that either are seriously on the table is a huge
step forward on its own. For years, surveillance has only expanded. And
we're actually at a rare point in history where things are going to go
the other way. Now we just need to make it meaningful in creating
something that goes beyond either just sunsetting or just USA Freedom.
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