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.