Section 215 of the Patriot Act finally expired on June 1, mostly due to the heroic efforts of Senator Rand Paul (R-KY). While his fight in defense of civil liberties is widely celebrated across the country, few are debating other threats to US Americans’ privacy, which represent a very real and present danger.
Take the National Security Letters, or NSLs, for instance. NSLs are permanent administrative subpoenas used by the FBI to pressure banks, telephone companies, Internet service providers, and other businesses to share customer records with agents without judicial approval. Such procedures also protect the FBI from scrutiny, since companies that are on the receiving end of NSLs are prohibited from discussing the matter publicly.
According to the Cato Institute’s Julian Sanchez, allowing the Patriot Act’s loathed Section 215 to expire may give FBI agents further incentives to rely on NSLs for their investigations. The FBI could make even greater use of NSLs now that it lacks a court-supervised alternative.
But for the time being, the National Security Agency’s bulk collection of metadata pertaining to US Americans is on hold, and the entire country is finally discussing a matter brought to light by former NSA contractor-turned-whistleblower Edward Snowden two years ago. As privacy advocates continue to push for actual reform, Paul’s serious warnings concerning the USA Freedom Act — a bill he inadvertently boosted, in spite of his objections, by shutting down the Patriot Act — are beginning to echo. To Reason Magazine‘s Nick Gillespie, that’s a good thing.
Having the country finally opposing a clean reauthorization of the Patriot Act shows that the United States is ready to leave what Gillespie calls a “9/11-induced fog” behind, and begin searching for more clarity in how and why its government places citizens under surveillance.
Surveillance Powers Run Deep
To Paul, the USA Freedom Act doesn’t go far enough. According to the Republican presidential candidate, the bill would still mean that US Americans’ metadata remains vulnerable to government overreach. In spite of calls for support from Senators Mike Lee (R-UT) and Joe Manchin (D-WV) during Paul’s latest filibuster, the Kentucky senator maintains this is just the beginning of a real reform and vows to put an end to surveillance as we know it if he makes it to the White House.
But in spite of its lack of teeth, the USA Freedom Act was bound to pass, eventually without amendments proposed by Paul and Senator Ron Wyden (D-OR). What lawmakers do after the bill is sent to President Barack Obama’s desk will define the future of government-run mass surveillance.
A serious reform, critics suggest, requires action on the FISA Amendments Act of 2008, as well as past executive orders.
Under the FISA Amendments Act, section 702 (PDF), the FISA courts are required to review official records defining standards used by the intelligence community to carry surveillance programs targeting persons outside US soil. These certifications are submitted by the director of national intelligence as well as the US attorney general. This law, as well as Executive Order 12333, issued by President Reagan in 1981, is remains untouched, much to the despair of privacy advocates.
Until stronger reforms are embraced, the sunset of a portion of the Patriot Act does little to protect US citizens’ Fourth Amendment rights.
If Paul and his colleagues in Congress are serious about restoring important elements of the US Constitution, they will press for legislative actions to undo the innovations of previous administrations, which were validated secretly and with the bare minimum of public debate.
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