The Patriot Act has always been a bad law. Passed in a panic weeks after the 9/11 attacks, it erodes our civil liberties without adding measurably to our national security.
Some 14 years later, cooler heads in the House, in a bipartisan effort, have approved a bill, the USA Freedom Act, that would rein in one of the Patriot Act’s most objectionable practices, the government’s dragnet of private phone records. But on Friday, the bill fell three votes short in the Senate, where Republican leaders would rather simply extend the relevant provisions of the Patriot Act, set to expire on June 1.
Too bad for that. The USA Freedom Act represents a bare minimum in necessary reform. We wish it went further in restoring a balance between personal freedoms and national security. But if the Senate can’t pass even this bill, so be it — let the government’s program for collecting phone records in bulk come to an end. Let Section 215 of the Patriot Act expire.
Congress then could craft a new law, from scratch, that puts a premium on our liberties. It wouldn’t be easy, but it shouldn’t be easy.
We’re unclear why Senate Majority Leader Mitch McConnell and others defend this provision of the Patriot Act so strongly to begin with. Just three weeks ago, a federal appeals court released a blistering opinion that Section 215 does not legitimately allow for the “sweeping surveillance” of phone records and other data in “staggering” volumes. And all that data collection, according to testimony and government reports, has never made the difference in thwarting a terrorist attack.
The USA Freedom Act, approved in the House by 196 Republicans and 142 Democrats, would prohibit the National Security Agency and other government surveillance agencies from collecting and storing so-called metadata on phone calls — virtually every phone call, the numbers called and the times of the calls. Instead, the phone companies would hold this data, and the NSA could gain access only through a search warrant.
An additional reform, unfortunately not included in the USA Freedom Act, would be to require a citizens’ advocate — a lawyer for the regular Joe — to argue the other side whenever the NSA seeks permission from the Foreign Intelligence Surveillance Court to go sifting through phone records and other data. And the same limits on collecting data on domestic phone calls should apply to overseas calls.
The irony here is that nobody seems to have seen this coming. When the Patriot Act was rushed through Congress after 9/11, the greatest fear of civil libertarians was that the NSA and FBI would exploit the new law to paw too freely through the private records of specific individuals. The government might order your local public library, for example, to reveal what books you checked out. Section 215 was known, in fact, as the “library provision.”
But the NSA put the law to much grander use, collecting massive amounts of data on the phone calls of a majority of Americans.
As ProPublica, the investigative journalism website, reported two years ago, part of the problem was a failure of imagination. Civil libertarians were wary of the Patriot Act, but they did not foresee the full sleuthing possibilities.
And part of the problem may be, as the federal appeals court ruled this month, that the NSA overstepped its authority. The NSA relied on a radical and incorrect interpretation of the Patriot Act to launch its mass surveillance program.
Congress will take one last shot next week at reining in the Patriot Act. If it fails to do so — if it does nothing to curb the government’s bulk collection of phone records — let the program expire.
And start again from scratch.