Guess what: the sky isn’t falling, even though bulk collection of all Americans’ phone records under Section 215 of the Patriot Act has halted due to Congressional gridlock. Despite the best efforts of various surveillance hawks to scare us, the US Senate could not pass any legislation to either extend or reform the expiring provisions by the sunset deadline by midnight on Sunday.
Yet it is far from clear how the powers that expired today have been used or have been useful. The Obama-appointed Privacy and Civil Liberties Oversight Board couldn’t find one instance where the bulk phone records program had made a “significant contribution to counterterrorism efforts.” Even the Department of Justice’s Inspector General has acknowledged that FBI collection under this authority has not contributed to “any major case developments” despite the Attorney General’s assertion that it was somehow “important” and Senator Mitch McConnell’s endless efforts to save it from extinction. The government still has plenty of tools at its disposal to monitor business records when that is valuable for counter-terrorism efforts.
The expiration of Section 215, even if only temporary, is a little victory for our privacy, and for the principle that the government shouldn’t invade it without showing it truly needs to and will narrowly tailor any intrusion accordingly. And now that the sky hasn’t fallen, Congress should heed the message that is coming through loud and clear from its constituents to substantially reform the way surveillance is conducted.
The Senate did vote to take up again this week the much-diluted reform bill known as the USA Freedom Act, a surveillance reform bill that has already been passed by the House of Representatives. This bill was a compromise we supported as better than reauthorization of Section 215, but lacking in key respects. The sunset of Section 215 means Americans get a fresh slate, and their representatives should pass legislation to eliminate not just “bulk” or “bulky” collection but all suspicionless surveillance, strengthen the transparency of the Foreign Intelligence Surveillance Act (FISA) court, give it an independent civil liberties advocate to represent our interests, and eliminate the retention and transfer of data that turns out not to be relevant to the purpose for which it was collected. What’s critical is that the standards proposed in the USA Freedom Act be considered as a starting point for improvements, not for further dilution and downward compromise.
Once we get records collection straight, there’s plenty more for a rested and ready Congress to do, including reform of the other legal authorities that permit mass surveillance. It could even consider the plight of the man who let the American people know their government was spying on nearly all of them nearly all the time. Edward Snowden, though encouraged by the debate his revelations sparked, is still in exile in Russia, and national security whistleblowers are still unable to defend themselves by showing their acts did more public good than harm. They deserve fresh consideration too.