The USA PATRIOT Act just turned 12 years old this past weekend, and it has been a dark specter hanging over the heads of Americans during its lifetime. Its wonderful-sounding name hides the intricacies of a law that violates numerous civil liberties in the name of security from terrorists, both foreign and domestic. The Act, along with related activities conducted by agencies such as the National Security Agency, is something many Americans have just accepted in the course of continuing with their everyday lives.
Recently, there has been a waterfall of legislation and popular protests in the wake of the so-called NSA scandal, attempting to reform phone records collection and how such records are used. However, what’s most interesting is that the latest and biggest legislative challenge to the Patriot Act and related NSA surveillance comes from the two legislators best equipped to actually pass some meaningful reform.
These legislators are Rep. Jim Sensenbrenner (R-Wisconsin), the lead author of the Patriot Act and the chair of the House Subcommittee on Terrorism and Crime; and Sen. Patrick Leahy (D-Connecticut), chair of the Senate Judiciary Committee, which has jurisdiction over activities covered under the Patriot Act and those conducted by the Foreign Intelligence Surveillance Court, the agency in charge of overseeing requests for warrants for collecting phone records, and, in some cases, issuing surveillance court orders.
Aside from the big names sponsoring the legislation, and the fact that the primary sponsors are from either side of the aisle, it’s also important to note that the act enjoys bipartisan support. As of press time, the proposed USA Freedom Act is supported by 16 senators including Tom Udall (D-New Mexico) and Mike Lee (R-Utah), and more than 70 representatives, including Justin Amash (R-Michigan) and John Conyers, Jr. (D-Michigan).
But enough about the style. Let’s get on to the substance.
The proposed act would start by changing Section 215 of the Patriot Act, the part that authorizes the NSA to collect Americans’ phone records on a daily basis, in order to make such records harder to access and make it more imperative to delete irrelevant records. Also, the FISA court would only be able to issue subpoenas for collecting such records directly related to terrorists, their associates and their activities.
It would also change the FISA Amendment Act, passed in 2008, which solidified the government practice of large-scale warrantless wiretapping. Specifically, the proposed act would limit the government to searching through records collected under that act only with a court order or in a national emergency. In addition, there would be higher transparency standards for the FISA court as well as the creation of a new special advocate who would argue in favor of more privacy protections in front of the court. Current arguments before the FISA court only advocate for increased surveillance.
The ACLU, the NRA, the Constitution Project and the Center for Democracy and Technology are among the organizations endorsing the new Act.
At the same time, NSA surveillance advocates, headed by Sen. Dianne Feinstein (D-California), the chair of the Senate Intelligence Committee, are promising to oppose the USA Freedom Act on the grounds that because only phone metadata — phone numbers, call times, durations and locations — is collected, the breach of privacy rights is insignificant compared to the importance of the continued surveillance in preventing terrorist attacks.
In an ideal world, where civil liberties are protected, the government would simply strip away the Patriot Act instead of trying to patch legislation with more legislation. However, because the U.S. government and American public, with a few notable exceptions, have largely shown that they would prefer to sacrifice liberty for security, contrary to Ben Franklin’s famous warning, the USA Freedom Act is a valid first step toward finding a way to balance the two concerns.