Some of the most controversial surveillance mechanisms of the Patriot Act expired on Sunday night as a result of pushback from concerned citizens and some in Congress, who have taken up their interests. A reform bill, the USA Freedom Act, will vote on later in the week.
Sen. Rand Paul, R-Ky. holds up his cell phone as he speaks before announcing the start of his presidential campaign, in Louisville, Ky. Key Patriot Act anti-terror provisions, including bulk collection of Americans’ phone records, expire at midnight unless senators come up with an 11th hour deal in an extraordinary Sunday afternoon session.
WASHINGTON — Late last week the Obama administration demanded that the U.S. Senate pass the USA Freedom Act, a bill that would extend certain surveillance mechanisms of the Patriot Act, by midnight Sunday.
Sunset provisions for ending two parts of the Patriot Act, including the controversial Section 215, and one part of the Intelligence Reform and Terrorism Prevention Act of 2004, kicked into effect on Monday, effectively making the National Security Agency’s program to make new orders to collect U.S. phone data and other surveillance activities inoperable.
Rand Paul, the Republican Senator from Kentucky and presidential hopeful, spoke for 10-and-a-half hours on the Senate floor to “filibuster” the reauthorization of the Patriot Act on May 20. “I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged,” Paul said, adding: “The bulk collection of all Americans phone records all of the time is a direct violation of the Fourth Amendment.”
Following his speech and a deficit of votes, reauthorization of the Patriot Act failed. However, the reform bill, the USA Freedom Act, will be taken up again by the Senate this week.
“I think what that suggests is that there’s a shift in Congress, and that shift is moving toward greater reform,” said Neema Singh Guliani, legislative counsel with the American Civil Liberties Union Washington Legislative Office, which focuses on surveillance, privacy, and national security issues, while speaking with MintPress News.
Singh Guliani added, however, that it is unclear whether Congress will pass the reform legislation or whether the provisions will simply expire because of disagreement over what surveillance reform should look like.
A battle for civil liberties
The battle to end these provisions started even before the Patriot Act was signed into law by President George W. Bush in October 2001. Some parts of the act — particularly those which erode the civil liberties of American citizens — were enacted following the 9/11 terror attacks but made to “sunset” on Dec. 31, 2005.
However, with the nation still reeling in fear after the invasion of Iraq, Congress passed two bills that made 14 of the 16 Patriot Act provisions permanent. The other two – Section 206, also known as the “Roving Wiretap” provision, and Section 215 – were to sunset on Dec. 31, 2009, while another, Section 6001, the “lone wolf” amendment, was added, but also set to expire.
Obama reauthorized all three of these provisions in February 2010, with the caveat that they would expire on June 1, 2015.
There’s been a shift this year, though, as evidenced by the movement to push back against extending these three sections of the Patriot Act. The movement is both Republican and Democrat. But it also includes Americans who identify outside of those political party terms, like Libertarians, Anarchists, Socialists and Capitalists. It includes the religious and atheists. Basically, it’s an entire spectrum of people concerned about civil liberties and human rights.
The movement is also informed. This is largely due to the revelations of Edward Snowden, a former CIA systems administrator and NSA contractor. Starting in June 2013, Snowden revealed the existence of numerous global surveillance systems that cooperated with phone companies and various governments around the world. This included information regarding the bulk collection of Americans’ telephone metadata — numbers, times and durations — covered under the controversial Section 215 of the Patriot Act.
Snowden’s leaks kicked off a national debate over the constitutionality of mass surveillance, government secrecy and privacy of information.
They also led U.S. District Judge Richard Leon in Washington, D.C., to rule in December 2013 that the systematic collection of all American phone call data likely violates the Fourth Amendment of the Constitution, which protects against unreasonable search and seizure.
Leon’s ruling, which described the program as “almost–Orwellian” was put on hold, awaiting government appeal. Later that month U.S. District Judge William Pauley III in Manhattan ruled that the NSA program was legal and did not violate the Constitution, which made it seem like the Supreme Court would have to rule on the issue.
Snowden’s revelations also forced the Drug Enforcement Agency to end its own mass surveillance program, which had served as the model for the NSA’s phone dragnet program.
Section 6001: The “Lone Wolf” amendment
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 is an amendment that broadened the Foreign Intelligence Surveillance Act of 1978 to allow the government to spy on non-U.S. people engaged “in international terrorism or activities in preparation therefore.” In other words, the government would no longer have to connect a person to a foreign government or international terrorism organization to spy on that person if he or she was believed to be a “lone wolf” who might commit a terrorist act of their own volition.
The ACLU’s Singh Guliani told MintPress that one of the organization’s concerns about the provision is that it has never been used, and so may be an unnecessary grant of power.
She says it also raises constitutional concerns, as it allows the government to use national security authority in a criminal context. She explained:
“I think at the end of the day what it ends up being is a law on the books that isn’t being used, and isn’t effective, but leaves a lot of potential for the government to abuse and infringe on people’s liberties.”
Section 206: The “Roving Wiretap”
Section 206, also known as the “Roving Wiretap” provision, allows intelligence officials to spy on terrorist suspects regardless of the number of communications devices they use. It allows intelligence to monitor devices that a suspect uses, even if other people, who are not suspects, use the same device. The government maintains that this is an uncontroversial authority.
However, Marcy Wheeler, a journalist, who frequently writes about civil liberties issues, told MintPress that it may be more controversial than we know. “The two things that are more important to them [government supporters of mass surveillance] than the phone dragnet are the ‘Roving Wiretap’ provision and other uses of Section 215,” she said.
Regarding the Roving Wiretap, Wheeler emphasized in her blog Emptywheel how the provision has been interpreted to allow the government in certain situations to target phones and email addresses without informing the Foreign Intelligence Surveillance Court (FISC) until after the fact. She described “this secret interpretation of the law” as “a fairly breathtaking argument, with potentially dangerous ongoing implications.”
The Electronic Frontier Foundation, a nonprofit dedicated to protecting civil liberties in the digital world, sums up the criticism on its website:
“Imagine that the FBI could, with a single search warrant, raid every house or office that an individual suspect has visited over an entire year – every single place, whether or not the residents themselves are suspects. Suppose that the FBI could do this without ever having to identify the suspect in question. This is what Section 206 allows in the communications context. Section 206 authorizes intelligence investigators to conduct ‘John Doe’ roving surveillance – meaning that the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name. This gives the FBI a ‘blank check’ to violate the communications privacy of countless innocent Americans. What’s worse, these blank-check wiretap orders can remain in effect for up to a year.”
Section 215: The phone dragnet
Section 215 gives intelligence officials and agencies access to business records in investigations related to terrorism and counterintelligence with the approval of the FISC. However, as a leaked FISC document revealed in 2013, it also allows intelligence agencies to collect call data from millions of innocent people.
Critics of the provision, who want it either sunsetted or reformed, argue that it is not essential in terrorism investigations. The EFF wrote in January:
“The White House admitted that the government can accomplish its goals without bulk telephone records collection. What’s more, the President’s Review Board said ‘the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks.’ And the Privacy and Civil Liberties Oversight Board could not identify one time when bulk collection under Section 215 of the PATRIOT Act ‘made a concrete difference in the outcome of a counterterrorism investigation.’ Similarly, an in-depth analysis of 225 cases of people charged with terrorism found that ‘the contribution of NSA’s bulk surveillance programs to these cases was minimal.’”
Wheeler told MintPress the government is interested in Section 215 for purposes beyond the phone dragnet, however. “As everyone talks about whether this phone dragnet is going to expire on Monday, it’s important to remember the other uses of Section 215,” she said.
Indeed, she explained, this includes logs from an Internet service provider to track who moves where on the Internet. She said, “They might target things like jihadist forums in the United States to see who’s coming in and going out. They target things like cyber attack targets.”
While the law to authorize the kind of targeted surveillance Wheeler described, may end on Monday, she told MintPress that existing orders to continue that type of surveillance almost certainly will not.
Honest intentions, the police state, and discrimination
Wheeler conceded that she believes supporters of the Patriot Act honestly think a surveillance state is needed to protect the nation. What worries her, however, is how close that “surveillance state” comes to being a “police state.”
She added that Americans should also be careful about how these laws are interpreted and used. She gave as an example COINTELPRO and government surveillance of civil rights groups in the 1960s, when government surveillance of American citizens was legal.
The FBI targeted civil rights leaders and activists like Martin Luther King Jr., she said, because they made a connection between King and communism, a political ideology that was seen as a national security threat at the time.
“In the same way that the government of J. Edgar Hoover developed its network understanding of the civil rights movement in the ‘60s — the NSA has done that for Muslim groups in the United States,” she said. “They’ve already done that.”