Don't Underestimate the National-Security State

The sunset of Patriot Act provisions is a symbolic victory, but an inadequate response to post-9/11 surveillance policy.

Jason Reed / Reuters

The sunset of several Patriot Act provisions today marks a change in the politics of national security. Despite the ongoing threat of terrorist attacks by Al Qaeda, ISIS, and others, many ambitious members of Congress just sided against national-security hawks and showed that unprecedented authorities passed after 9/11 can go away.

That is a significant reversal, but it’s not enough.

America’s legislature had spent more than a decade enabling and then deferring to national-security officials, and previously renewed the Patriot Act with little trouble. So it is reasonable for civil libertarians to celebrate the today’s sunset as a symbol of a new era in national security politics and even a portent of future victories. This time, fear-mongering about wildly exaggerated threats did not win the day.

But the sunset is wholly inadequate as a substantive reform to surveillance policy, for it does little to prevent the national-security state from collecting huge amounts of information with inadequate oversight, including much of the data that it collected under just-expired Patriot Act provisions.

Here’s how the Obama Administration might proceed absent additional reforms:

  • A permanent provision of the Patriot Act, Section 214, has been used in the past to justify the bulk collection of metadata, an interpretation that a secret surveillance court blessed. Perhaps that interpretation will be resurrected in the future.
  • Charlie Savage of the New York Times explains that in most terrorism-related cases once investigated using Section 215, the FBI could “use a grand jury subpoena to get the records it wanted by invoking rules for investigations into standard crimes.”
  • National Security Letters allow the FBI to get a more limited range of telecom and financial records “without even needing to seek judicial approval,” Julian Sanchez of The Cato Institute writes. “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.”
  • “215 itself doesn’t really expire when it expires,” Sanchez adds. “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... we can expect section 215 to have a lengthy afterlife.”

​Precisely because the U.S. government has many ways to work around newly expired surveillance authorities, perhaps permitting it to collect nearly as much data as before, Sanchez is urging passage of the USA Freedom Act, which he regards as an imperfect piece of reform legislation that is, nevertheless, better than nothing.

Under that law, the government would retain broad abilities to conduct surveillance of suspected terrorists, as is proper. Meanwhile, Sanchez argues that it would help to prevent the “tricky shell game that simply moves collection from expired authorities to permanent ones,” and that “critical transparency provisions” that it incorporates would make it harder for the executive branch to abuse the law’s terms with dubious legal interpretations that maximize surveillance authority.

His detailed analysis is here.

The Senate is now weighing amendments to the USA Freedom Act in advance of another vote that could send it to the president. If civil libertarians succeed in adding provisions that do more to rein in problematic surveillance or avert future abuses, today’s sunset of the Patriot Act may prove to have helped substantive reform.

But if mere sunset is all that happens, Americans concerned by mass surveillance and the national security state’s combination of power and secrecy should keep worrying.