On February 17th, Congress passed a three-month extension to three provisions of the USA PATRIOT Act that were set to expire at the end of the month. This gives them a few more months to debate the expiration of provisions for:
- “roving wiretaps,” or the ability to follow a suspect from phone to phone if they’re changing numbers or communication devices;
- the ability to ask a special court for access to “any tangible thing” including medical and library records; and
- “lone wolf” suspects, or surveillance of individuals without a connection to an organization.
The arguments for extending the Patriot Act have ranged from the mundane to the ideological. In this post, I summarize some arguments that proponents give for extending these provisions of the Patriot Act, and provide counter-arguments that you may find useful for engaging in these debates yourself.
Argument One: We need more time for debate.
According to the New York Times, the purpose of the most recent extension was to provide additional time for debate. Our Congressional representatives now have an additional three months to debate more options for how to extend the PATRIOT Act (whether to extend it at all does not seem to be on the table).
More time for debate is excellent. The PATRIOT Act was first passed with virtually no discussion, debate, or even time to read the legislation, in an atmosphere of fear immediately following the attacks of September 11, 2001. However, we have now had ten years’ experience with this Act, and a number of opportunities for debate. Almost yearly now, Congress debates reauthorization of sunsetting PATRIOT Act provisions. In fact, the reason for similar extensions in 2010 was that there wasn’t enough time to debate any amendments: the past year was supposed to be a time to do that debating.
Argument Two: Terrorists are going to kill us all if we don’t extend the PATRIOT Act.
The Heritage Foundation is fond of making the argument terrorists are going to kill us if we don’t renew all provisions of the PATRIOT Act. In a recent post, they take the opportunity of the FBI “thwarting” the 38th terrorist plot since 9/11 to make a plug for the PATRIOT Act as well as the proposed REAL ID program. A corollary of this argument is that it would be irresponsible not to put these important tools in the hands of law enforcement agencies.
I suggest that this qualifies for what Bruce Schneier calls, “security theater.” The Heritage Foundation makes no attempt to show a real link between the FBI arrest and specific expanded powers under the PATRIOT Act. Rather the argument they make is more like, “Look, the FBI did a good job, so we should give them whatever they want.” This ties in nicely with the ACLU’s allegations that the USA PATRIOT Act is mostly a law enforcement wishlist that was opportunistically passed following the 9/11 tragedy.
Argument Three: There’s plenty of oversight and privacy protection built into the law, and anyway, there’s no evidence of PATRIOT Act abuse.
The Heritage Foundation claims that, “Opponents of these provisions have produced little evidence of any PATRIOT Act misuse.” However, it turns out that violations of Patriot Act provisions are well-documented. For example, in 2007, the Department of Justice issued a report documenting hundreds of FBI abuses of National Security Letters that failed to adhere to the minimal requirements of the PATRIOT Act. In 2003, the Electronic Privacy Information Center (EPIC) obtained documents showing that, “agents obtained e-mails after a warrant expired, seized bank records without proper authority and conducted an improper ‘unconsented physical search’” (from Bruce Schneier). The FBI claimed in 2005 that similar “mistakes” were justified because of the “steep learning curve” for agents dealing with their new powers under the PATRIOT Act. This debate boils down to whether these violations should be considered “mistakes” or “abuse/misuse.” Proponents of the PATRIOT Act seem to prefer the word “mistakes,” while opponents prefer “abuse.” Take your pick.
Regardless of terminology, even feeble attempts to increase oversight have failed. About last year’s reauthorization, USA Today reported, “The Senate also approved the measure, with privacy protections cast aside when Senate Democrats lacked the necessary 60-vote supermajority to pass them. Thrown away were restrictions and greater scrutiny on the government’s authority to spy on Americans and seize their records.” The previous year, in 2009, Senator Durbin attempted to add an amendment to a PATRIOT Act reauthorization bill that would require agents to certify they were gathering information related to an open investigation into terrorism. It failed.
Three more months. The continuing debate on the USA PATRIOT Act will ostensibly happen between now and May. If you would like to get involved, the Electronic Frontier Foundation will help you take action. The ALA Office for Intellectual Freedom is a good clearinghouse for information relevant to the PATRIOT Act and Libraries; they have also started a project called Privacy Revolution with a “Choose Privacy Week” scheduled to happen the first week of May. And, you may have some unlikely allies if you wish to fight against the renewal of the PATRIOT Act, as seen in this comment on the Heritage Foundation blog: “They need to get rid of the Patriot Act completely. At some point it is going to be used against US citizens who disagree with the government. For instance the Tea Party.”