There are few surer signs of a democracy in danger than permanent states of emergency. One could reasonably argue that such a state existed in the immediate smoldering aftermath of the September 11, 2001 terrorist attacks, when Congress rushed to approve the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act of 2001 in the few fear-filled weeks after 9/11. It passed by a vote of 357-66 in the House of Representatives and 98-1 in the Senate, with Russ Feingold (D-WI) casting the lone dissenting vote. President George W. Bush signed the bill into law on October 26, 2001.
Civil, digital and privacy rights advocates immediately blasted the Patriot Act, which greatly expanded the government’s power to spy on its own citizens while weakening the system of checks and balances including judicial oversight, public accountability and the right of citizens to seek legal redress for unconstitutional searches. Activists also decried the act’s authorization of open-ended detention of immigrants under certain circumstances.
Simply put, the Patriot Act allows the government to commit shocking violations of Americans’ most basic constitutional rights, while enabling the indefinite imprisonment of non-citizens.
The Patriot Act is now old enough that, if it were a person, it could enlist in the US military. Just like thousands of American servicemen and women who were born after September 11, 2001, it could sign up and ship off to Afghanistan, or perhaps any of the other half dozen or so countries under attack in the never-ending US-led war of terror. If it could speak, it would no doubt tell you how it was “fighting for your freedom,” even though its very existence represents one of the most severe intrusions upon our civil, digital and privacy rights in our nation’s history.
With tens of millions of Americans losing their livelihoods amid the worst pandemic in a century, don’t be so hard on yourself if you didn’t notice the Patriot Act back in the news lately. Actually, it’s been in the news since November, when House Speaker Nancy Pelosi — who once upon a time called Patriot Act reauthorization a “massive invasion of privacy” — went all-in for a massive invasion of privacy by slipping a three-month extension of the USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring) Act, an Orwellian-renaming of the Patriot Act’s provisions that expired back in 2015. All but 10 House Democrats voted to extend the Patriot Act.
And now, the Senate has approved the USA FREEDOM Reauthorization Act of 2020, restoring government surveillance and investigative powers that expired in March, including the infamous Section 215 of the Patriot Act (more on that to come). It also authorizes the “lone wolf” and “roving wiretap” powers. Under the “lone wolf” provision, a non-US citizen who engages in international terrorism or activities in preparation for international terrorism is deemed to be an “agent of a foreign power” under FISA. The “roving wiretap” provision removes the requirement for a new surveillance order if a suspect discards a phone or moves to a new address. It also allows for anyone who comes into even casual contact with a suspected terrorist to be wiretapped.
This comes a day after the senators failed by just one vote to approve an amendment that would have prohibited law enforcement from searching your internet browsing and search history data without a warrant. Sen. Ron Wyden (D-OR), who co-sponsored the amendment, asserted that “getting access to somebody’s web browsing history is almost like spying on their thoughts.”
There were 10 Democrats who voted against the measure. Sen. Bernie Sanders (I-VT) could have been that one single vote needed to clear the 60 vote hurdle. Alas, he did not vote on the bill.
The Freedom Act reauthorization now heads to the House, where members, especially Democrats, are under pressure to add further amendments. Speaking of amendments…
The First Amendment to the United States Constitution guarantees freedom of speech, press freedom and freedom of assembly. However, Section 215 of the Patriot Act allows the FBI to “make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information.” Previously, the government could only obtain records from businesses like car rental agencies, storage facilities and transportation services. Under Section 215, “any tangible things” could include individual medical records, internet service provider logs… even your library records.
“Often there is a greater chill on free expression not from direct censorship but from government monitoring,” argued American Civil Liberties Union (ACLU) attorney Jameel Jaffer explained.
Furthermore, Section 215 imposes a gag order upon anyone from whom the FBI “has sought or obtained tangible things.” This means that your medical clinic, internet service provider or librarian cannot not tell you if the government requests or receives your information under Section 215, another serious First Amendment violation.
The Fourth Amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires law enforcement officers to obtain warrants before conducting most searches. In order to secure a warrant, an officer must show probable cause and make a sworn statement before a judge “particularly describing the place to be searched, and the persons or things to be seized.” The Patriot Act positively shreds the Fourth Amendment.
The Fifth Amendment to the United States Constitution guarantees that “no person shall… be deprived of life, liberty, or property, without due process of law.” The authorization of indefinite detention is a blatant violation of this most basic protection.
If there is a silver lining to all of this, it comes in the form of the Lee-Leahy amendment, which strengthens third-party oversight of the FISA process. Privacy advocates rejoiced a little when the Senate approved the measure by a vote of 77-19 on Wednesday. The bipartisan amendment, from Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT), increases the role of outside legal experts in FISA court hearings, including allowing them to weigh in on some FBI surveillance requests.
Ethics In Tech has strongly opposed the Patriot Act for our entire existence. We will continue to do so for as long as the Patriot Act and USA Freedom Act exist. All the amendments in the world won’t change our mind, for the acts are so fundamentally flawed and so fundamentally opposed to the most basic principles of democracy, and our own mission statement.
It’s up to all of us to take a stand against the erosion of our civil liberties and our democracy. Write or call your lawmakers. Find allies and get involved — groups like Electronic Frontier Foundation (EFF) and its Electronic Frontier Alliance (EFA) are on the front lines of this war, and they can always use more warriors. Take action. Nothing less than the future of your freedom is at stake.