The USA Patriot Act is a symbol of government surveillance – particularly its massive expansion in the wake of 9/11. You’ve likely heard it used or even used it yourself as a shorthand term to describe the issue of such surveillance.
But the Patriot Act is about far more than that. In fact, it was, and remains, a large, sweeping policy; the majority of which has little or even nothing to do with surveillance. So whether you’re concerned about the issue or merely interested in it, it’s best to know as much as possible.
What is PATRIOT?
Officially called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, USA PATRIOT was somewhat hastily developed as a form of anti-terrorism legislation. Over time, common use dropped the all-caps designation, which is why it’s now referred to simply as the Patriot Act.
As hinted at in the introduction to this post, it came about in response to the 9/11 attack on New York and the Pentagon in 2001.
Some feel in the attempt to act swiftly and decisively, due process was largely ignored in the development of the Patriot Act. Indeed, there was very little Congressional oversight or discussion, and President Bush signed the Act on October 26, 2001 – barely 7 weeks after the attacks. Senator Russ Feingold of Wisconsin was the only one to vote against the bill’s passing.
The Patriot Act gave – and continues to support – sweeping search and surveillance capabilities to domestic law enforcement and foreign intelligence agencies. Checks and balances that previously ensured courts of law were able to determine whether such powers were being abused were scrapped entirely.
Just 6 months after the Patriot Act was enacted, the National Coalition Against Censorship published a Statement by Members of the Free Expression Network. In it, the case was argued that the Act was reminiscent of historically “unwise and unnecessary” actions by the United States government to “curtail civil liberties, particularly the freedom of speech.”
The argument explained, while the original intentions to “bring to justice the perpetrators of the September 11 attacks and to prevent future threats to our security,” is important, the Patriot Act attempts to do so “in ways that fundamentally threaten democracy”.
Has the Patriot Act Expired?
In 2015, there were rumors that the Patriot Act expired or was in the process of expiring. However, this was incorrect.
During one of the rare pre-enactment debates, Senator Ron Wyden of Oregon expressed valid concerns regarding the power given to the federal government by the Patriot Act.
His vote in favor was given with the caveat of a 5-year countdown, by the end of which (originally 2006), the 3 provisions he found to be the most dubious were to be “sunsetted” (expired) unless Congress revisited and revised them. Sen. Wyden is quoted as saying he hoped “these provisions would be more thoughtfully debated at a later, less panicked time.”
Indeed, there was a renewal of debate in 2006. Sen. Feingold led a filibuster that helped to lead some slight adjustments of the sections in question.
However, by 2011 (another 5 years later), Sen. Wyden warned others of the Senate that a “secret Patriot Act” was in existence, giving the federal government more surveillance power than the public knew of or assumed. Despite his attempts against it, Congress granted another 4-year extension to May 31, 2015.
The (Most) Questionable Provisions
When we look at the 3 provisions Sen. Wyden was most cautious regarding, the controversy surrounding them makes absolute sense.
Section 215 is the most well-known of these, and it continues to haunt us to this day. Officially known as the “business records” provision, Section 215 allows for the government to demand all available records from a business regarding an employee suspected of having any sort of ties to terrorism.
Original concerns took the form of mild criticism, with fears of public libraries being forced to divulge the borrowing records of any suspected person, no matter how flimsy the cause for suspicion.
Someone doing religious studies for a school project or university-level assignment, for example, would certainly have cause for fear if they ever took out any material relating to Islam.
But Edward Snowden, former government contractor turned whistle-blower, leaked some damning documents in 2013 that completely overshadowed those earlier concerns. Section 215 came under increased scrutiny as a result of the federal government using it as legal justification for collecting phone records of American citizens.
Four years after yet another extension granted by Congress, Americans are still waiting for Section 215 to be officially sunsetted. The upcoming December 15, 2019 deadline looms.
Section 206, the “roving wiretap” provision, is the second of the three questionable sections of the Patriot Act due for review in December. This provision requires the federal government receive a once-off approval from the infamously permissive Foreign Intelligence Surveillance Court to tap every single communications device used by an individual.
The “lone wolf” provision, Section 207, concludes the group by allowing government agencies to “survey” any person under even the slightest suspicion of engaging in international terrorism.
Have These Provisions Been of Any Use?
That depends on whom you ask.
The Obama administration claimed that Section 215 “is an important tool in our effort to disrupt terrorist plots”.
President Trump’s administration has been secretive about whether 45 will be reauthorizing the provisions in December, saying it’s still under consideration. But they do appear to be “prepared to seek the permanent renewal of those powers”.
A Congressional aide, who was allegedly not authorized to publicize the opinion, also conceded that 215 is still considered “a relatively useful authority and is probably not objectionable given the reforms made to it in 2015.”
But the federal government’s Privacy and Civil Liberties Oversight Board reviewed Section 215 back in 2014 and painted a very different picture – one that it seems to stand by today:
“We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counter-terrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist act.”
(Excerpt from the review – read full PDF text here)
As for the remaining two questionable provisions? There appears to be very little said, and it’s up for debate whether Section 207 was ever used at all.
How the USA Freedom Act is Connected?
One way the Patriot Act is proposed to be corrected is through the USA Freedom Act.
The Act is officially titled the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act (USA FREEDOM Act); full capitalization similarly dropped out of common use.
The Act is meant to enforce official requests by the federal government to the Foreign Intelligence Surveillance Court before gaining or attempting to gain access to phone records. Access will only be allowed (theoretically) for specific searches, rather than a bulk collection of the public’s private data at large.
One of the weaknesses in the Patriot Act that the Freedom Act is meant to tackle is National Security Letters. Allegedly, National Security Letters have been used to gain access to journalistic records (in violation of First Amendment Rights) when the standards set out under Section 215 were not met. The Freedom Act is meant to enforce those same standards regardless of the manner in which requests for access are made.
However, even the Freedom Act was found lacking in the eyes of privacy advocates. For example, in 2015, Senator Rand Paul of Kentucky raised a filibuster to voice concerns that it would continue to allow the same invasive surveillance as Section 215. His opposition was overruled and the Freedom Act was signed into motion.
At the end of the day, one thing remains clear: the federal government has persistently valued ineffective surveillance legislation over the civil rights of US citizens.