The PATRIOT Act: Protection over Privacy

Questioning authority is as American as apple pie.

From the tax-averse Sons of Liberty in Boston, who defied the Tea Act of 1773 by dumping a shipload of tea into the sea, to pacifist Jeanette Rankin, the first woman elected to Congress who on December 8, 1941 cast the sole vote against the U.S. declaration of war on Japan, and to Occupy Wall Street, a self-described “leaderless resistance movement” that four days after the 2016 elections called for “A people’s assembly to elect and swear in an alternative American ‘government in exile’” – Americans have never been reluctant to question their government’s actions.

Most Americans are grateful to have that constitutional right, and are proud that throughout the country’s history, that right has been usually put to a good use. But sometimes people forget that protests can have serious consequences, and must consider whether all objections are fair and necessary.

These questions deserve to be raised when considering a weighty and highly controversial issue: the vehement rejection of certain security measures that Congress adopted after the September 11, 2001 terrorist attacks. In recent years, some of these laws that were passed for the protection of the American people came under severe and often emotionally charged scrutiny for their alleged threat to personal freedom.

The heart of the controversy was the “USA PATRIOT Act” that Congress enacted in October 2001 to enable the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) to collect information they considered to be potentially helpful in preventing future terrorist attacks.

The bipartisan law had been proposed after President George W. Bush, standing on the ruins of the Twin Towers, declared “a war on terrorism.” The act was quickly endorsed by all but two of the 100 U.S. Senators and 357 of the 435 members of the U.S. House of Representatives.

Resistance to the PATRIOT Act

As long as the act was enforced out of the public’s view, it caused no controversy. But after its existence and extent were made public in 2013 by WikiLeaks – an organization that specializes in publishing government secrets – civil rights advocates, editorial writers, social media and prominent law professors launched a vigorous debate about the act’s effect on Americans’ civil liberties.

Most objections were raised against the law’s Section 215 that allowed the government to conduct wiretaps and search business records in order to find out with whom – including individuals in the United States – a suspected terrorist abroad had been in telephone contact.

The specific complaint was that this provision violated the Fourth Amendment to the U.S. Constitution that deals with the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and seeks to protect this right by “requir[ing] law-enforcement officers to obtain warrants before making most searches.”

To get such a warrant, the Constitution rules, officers must make sworn statements before a judge “particularly describing the place to be searched, and the persons or things to be seized.”

Some – but not all – law experts charged that because under The PATRIOT Act the phone records were turned over to NSA in bulk, without evidence that any of them were relevant to an investigation, the information obtained by the Section 215 program – although it did not reveal anything that was said in any of the phone calls – was infringing on the involved individual’s right to privacy.

Defenders of the program asserted with equal fervor that it struck the right balance between intelligence needs and privacy, and that the program was a necessary information tool for national security.

How the PATRIOT Act Worked

As described by Glenn S. Gerstell, the General Counsel of the NSA, the contested provision was used with the approval of a special court “to compel telephone companies to deliver to NSA (their) records…[that] were…traditionally used…for billing purposes – including the time and date of a call, which number was called, and the call’s duration, but not its content or the identity or location of any of the parties to the call.”

“The way the program worked,” Gerstell wrote in January 2016 in LAWFARE, a blog focused on national law and institutions, “in simple terms, was that NSA would collect the records and search them [for suspicious contacts that were] provided to the FBI. In certain instances, the tips have provided valuable information in FBI terror plot investigations.”

A Replacement for the PATRIOT Act

After much debate, Congress allowed the PATRIOT Act to expire and in June 2015 replaced it with the “USA Freedom Act,” a measure that put an end to the government’s ability to collect and hold information about Americans’ phone calls in bulk.

Instead, the new law – while not entirely Rube Goldbergian in complexity and confusion – set out a cumbersome and more time-consuming and expensive process to provide much the same results as had the relatively simple Section 215 of the previous act. There seems little doubt that the changes have made the job of identifying potential terrorists more difficult.

As described by Gerstell, under the new arrangement, the phone companies, not NSA, keep their phone call records. The FBI can (on behalf of the NSA) apply to a special court for an authority to inquire about a specific phone number or other identifying element, but only if the agency has a “reasonable, articulable suspicion” that it is associated with international terrorism.

If the court approves, the phone company produces a list of numbers, if any, with which the FBI-submitted number had been in contact. NSA is then permitted to broaden the inquiry by asking for the telephone contacts of the numbers that have been provided by the phone company. It cannot, however, further investigate the results of its inquiry to see subsequent levels of contact.

Another new feature of the Freedom Act is that although – like its predecessor– it is enforced in secret, it contains provisions that allow, in certain significant circumstances, public disclosure of the inquiries.

In short, we may now get a better idea of the frequency and scope of these individual inquiries, and as President Obama pointed out after signing the new law, “it will strengthen civil liberty safeguards and provide greater public confidence in these programs.”

The Legacy of the PATRIOT Act

The law went into effect only at the end of 2015 – too close for any judgment of its effectiveness in preventing terrorism. But in the meantime, perhaps we should reflect on one key reason why the government felt compelled to complicate the enforcement of the law: the need to dispel the public’s apparent lack of confidence in the men and women who implemented the act.

After all, for more than 100 years, we Americans have trusted government experts to strengthen the safety of our food, drinks, medicines and a myriad of other products and processes by fairly enforcing congressionally approved laws and regulations.

Many of these requirements – from using seat belts to pasteurizing milk to avoiding certain drugs – can be seen as infringing on our freedoms, but we accept those measures because of the greater good they do by protecting our health and safety.

Now, government experts in FBI, CIA and other security agencies are fighting a bitter and dangerous war against an enemy that in just one blow – the destruction of the Twin Towers – was able to murder 2,507 civilians, 343 firefighters, 72 policemen and 55 soldiers. And the war against this menace continues – since 2010, there have been at least seven significant terrorist incidents that killed 77 and injured 293 American civilians.

Freedom to disagree is unquestionably a critical component of our exceptional quality of life. But so is the government’s crucial work to protect us from risks against which we, as individuals, are defenseless. Here is a question to consider: Are we fair in denying Uncle Sam’s security agents the same sort of trust we give their colleagues who protect us against harmful products and traffic injuries?