The Immortality of the Patriot Act

Like a bad case of herpes, the Patriot Act is flaring up again in the halls of the Senate, and there were some hits and misses, with the main casualty being privacy rights.

May 25, 2020

By: Bobby Casey, Managing Director GWP

patriot act warantless searches The sun set on Section 215 back in March around the same time as much of the US was instructed to shut down due to Covid-19.

Congress reconvened on May 13 to resuscitate this bill, and reactivate a few tools in it:

  • Section 215 orders that allow for the collection of business and other records of individuals through the FISA court
  • A roving wiretap provision that permits the government to get orders targeting people who frequently change phone lines or use so-called burner devices to avoid traditional wiretaps on individual lines
  • Reauthorize the “Lone Wolf” provision, which is a power designed to target suspected individual terrorists

The USA Freedom Act, which is part of the larger Patriot Act, was also brought up for reauthorization, and an amendment to prevent warrantless searches of American web browser history was struck down.

It was a very simple amendment, which, if the intention of the bill was in fact to protect Americans from terrorists, would only serve to affirm that interpretation.

The proposed amendment by Wyden and Daines simply prohibited using the section of the law allowing for third-party data collection to include web browser and search history information. This amendment would only protect American citizens and only covered warrantless searches.

It was a bipartisan proposal from Sen. Ron Wyden (D–Ore.) and Sen. Steve Daines (R–Mont.). Likewise, both parties participated in blocking the amendment, with some establishment Democrats voting against it.

It failed by ONE vote and four senators didn’t appear for that vote. Sen. Lamar Alexander (R-TN) was in self-quarantine due to a staff member testing positive for Covid-19.

The other three, are Sen. Bernie Sanders (I-VT), Sen. Ben Sasse (R-NE), and Sen. Patty Murray (D-WA). Any one of them could’ve tipped the scales in the other direction, but no-showed instead.

Aside from the immediate problem of government presuming to have some right to see your browser history, the larger issue is the immortality of these supposed temporary emergency measures.

The argument that defends this kind of intrusion is focused on the possible guilt of the accused. In the US, there is at least lip service toward a presumption of innocence. So a policy predicated on a presumption of guilt unto itself should be void.

It frames the argument incorrectly. It presumes the government has a positive right to your information.

If we are talking about the rights of the accused, then the question is does the government have probable cause to search a person’s browser history and a warrant to do so? If not, then the accused’s negative right to not be subject to improper search and seizure is the only argument to be made.

The implications don’t require much imagination. No one should want unaccountable, opaque surveillance policies, as they can be used against activists, dissenters, and political opponents (as was the case with the Trump campaign)… in either direction.

Ironically, that’s exactly what brought the two co-authors of the amendment together! The Republican didn’t want what happened to Trump’s campaign to happen to anyone else. And the Democrat didn’t want Trump or his allies to have that kind of power in their hands.

This, by the way, is how every law should be viewed: would you want your opponents to have this power? If not, then it shouldn’t be policy.

Rightly criticized by civil rights advocates, Evan Greer, the deputy director of Fight for the Future, said:

“The Patriot Act should be repealed in its entirety, set on fire and buried in the ground. It’s one of the worst laws passed in the last century, and there is zero evidence that the mass surveillance programs it enables have ever saved a single human life.”

Even if it could save every life on earth, what are you saving the lives for if not to just exist in tyranny and oppression? It used to be virtuous to die fighting tyranny. Now there appears to be virtue ascribed to living for tyranny and thanking it for the privilege!

Sen. Rand Paul (R-KY) also fruitlessly tried to offer an amendment to the FISA, which was to restrict these investigations to foreigners, and exempt Americans. That measure failed 11-85. Paul is among the dissidents in the Senate of the Patriot Act. Paul said this about FISA:

“The deficiency of the FISA court, and why it’s not constitutional, is you don’t get a lawyer,” Paul said on the Senate floor, discussing the FISA warrants issued against former Trump campaign adviser Carter Page. “You actually don’t even get told that you’ve been accused of a crime. The only reason we know that President [Donald] Trump’s campaign got caught up in this is he won. … If this had been an ordinary American caught up in this, you would never be told.”

Senator Paul can take heart, as all is not lost for American privacy rights. Something good also came out of that same session: another amendment was proposed by Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) which calls for protections to civil liberties as well.

[T]he amendment requires the FISA court to appoint ‘one or more’ individuals with privacy and civil liberties expertise in cases that raise “significant concerns” with respect to First Amendment-protected activities.

“It further enshrines specific requirements for the mandatory disclosure of exculpatory material, saying the government must bring forth any information that “might reasonably call into question the accuracy” of a surveillance application, or any information that would “otherwise raise doubts” with respect to the findings required under the application process.”

This kind of visibility and access to information in FISA proceedings, along with third party witness to the process and evidence is much-needed, long overdue, and certainly a move in the right direction.

It’s a level of accountability I scarcely expected from Congress, albeit it was not a unanimous pass (77 in favor, 19 against). That they were within one vote of getting protections against the browser history searches is hopeful as well.

Americans can be targeted, and spied upon, but at least that won’t be happening in secret. It’s sad that last sentence is the best I can do for a silver lining in all this.

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