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Sunsetting A Few Parts Of The PATRIOT Act May Be Symbolic And Good, But It Won't Really Change Much
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:
. 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:
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.
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.
https://www.techdirt.com/articles/20150529/12193431151/sunsetting-few-parts-patriot-act-may-be-symbolic-good-it-wont-really-change-much-itself.shtml
4 replies
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Were all gonna die!
Its fear politics and seemly very successful.
Don't miss the John Oliver video its good to have a laugh.
http://www.democraticunderground.com/1017269005
