Last week, I published an analysis of what might happen if the USA PATRIOT Act’s Sec. 215 is allowed to expire in June 2015—which will occur if Congress doesn’t get its act together and pass some semblance of surveillance reform. I concluded that reforming the law should be more satisfactory to both surveillance supporters and opponents.
Fellow Overt Action editor Aki correctly pointed out to me that I did not adequately explain why, from the civil liberties perspective, reform would be better than expiration. Wouldn’t it be better if current, supposedly overbroad FISA authorities just disappear from the books in June?
The answer is “no“—for two reasons.
First, as a matter of policy, I believe that reform along the lines of the USA FREEDOM Act provides the best means of protecting privacy. To understand why, we have to understand the needle threaded by that bill. The USA FREEDOM Act would have ended bulk collection while at the same time allowing NSA to continue to do targeted collection.
Basically, if NSA had good reason to believe that a particular phone number was associated with al-Qaeda, under the new law it could have given that number to phone companies and those companies would then have turned over the call records for individuals within two “hops” of that original number. In short, there is very little privacy harm or even prospective privacy harm here.
If you happen to be of the ilk that believes all government collection is bad government collection, then yes, expiration is still better than reform. But I personally would advocate for a smarter approach—we should, when possible, seek to maximize both privacy and security and, when any particular intelligence program comes with little privacy tradeoff, we should support that program.
This approach actually provides a better means of protecting civil liberties over the long-term. We as a country need to reach an equilibrium point where we neither overreact to terror threats nor ignore those threats entirely (see Mufti’s first pillar of counterterrorism wisdom here). Ignoring those threats, and unnecessarily eliminating valuable national security tools, is a sure way to guarantee another major terrorist attack will occur.
Such an attack will almost certainly cause a further erosion of civil liberties. While many of my civil liberties inclined friends will complain about the country’s tendency to overreact to terror threats, they should be weary of tearing down too many post-9/11 reforms in a way that invites such a future overreaction.
Second, calling for FISA provisions to expire is a political loser. Senate Republicans and Democrats alike will be under intense pressure not to allow FISA provisions to lapse. Many of those Senators actually helped draft post-9/11 reforms and, while they might be in favor of the USA FREEDOM Act, they will not be in favor of complete expiration.
The calculus in the House is far less certain, as those policymakers are less beholden to long legislative records on national security and more likely to respond to public outcry over surveillance issues. Nonetheless, I think a Republican-controlled House will err on the side of reauthorizing FISA provisions.
If Congress is faced with a choice in May 2015 between reauthorizing FISA provisions or allowing those provisions to expire, the odds are good that provisions will be reauthorized and the prospects of any surveillance reform will officially be dead.
This means that the civil liberties community must work to change the current decision set. If it wants to truly protect privacy, it cannot and should not bank on expiration and must instead support a positive reform agenda—i.e. the USA FREEDOM Act of 2015.