Hey Patriot, what about Freedom? A brief history of US post-9/11 surveillance

(By Deutsche Welle) America responded to 9/11 by expanding surveillance through the Patriot Act. Since Edward Snowden’s revelations, the nation has largely recanted. The debate is now about a Freedom Act. Spencer Kimball reports.

Only one senator voted against the Patriot Act in the frantic weeks following the devastating terrorist attacks on New York and Washington DC.

“This is an enormous expansion of authority, under a law that provides only minimal judicial supervision,” Russ Feingold declared during his speech on the floor of Senate.

At the time, first responders were still retrieving more than 2,000 corpses from the rubble of the World Trade Center, which had been renamed “Ground Zero.” A network of Islamist radicals led by Osama bin Laden had launched the worst attack on American soil since the Japanese bombed Pearl Harbor.

Feingold, a Democrat from Wisconsin, was voted out of office in 2010. But in the fourteenth year post 9/11, the tide has turned in America.

Even the Patriot Act’s father now opposes the most controversial provision of the law. Representative Jim Sensenbrenner, a Republican from Wisconsin, claims he never intended for the now infamous Section 215 to permit the bulk collection of Americans’ call records.

“This program is illegal and based on a blatant misinterpretation of the law,” Sensenbrenner said after a federal appeals court had ruled against the program in early May.

Clapper testimony

How did Congress not know what America’s law enforcement and intelligence agencies were doing? Some elected officials are on record posing the hard questions. They didn’t receive honest answers.

During a televised hearing in March of 2013, Senator Ron Wyden asked the nation’s most senior intelligence official point blank whether or not the National Security Agency was collecting “any type of data at all on millions of Americans.”

“No sir,” said James Clapper, the director of national intelligence. “There are cases where they could inadvertently perhaps collect, but not wittingly.”

In the years prior to Clapper’s false testimony, the Patriot Act had been reauthorized with little fanfare. Did intelligence officials intentionally dupe members of Congress about the law’s true scope?

Maybe they just didn’t care to find out. Then again, there are those who genuinely supported the law then as they do now believing it keeps America safe.

For Jake Laperruque, the slippery question of what Congress knew or could have known about Section 215 misses the more important point: The American people were kept in the dark.

“The public, they’re the ones who’re affected by this,” Laperruque, an expert on privacy and surveillance at the Center for Democracy and Technology, told DW. “The nature of this is that the phone records of everyone in the nation are collected.”

“They didn’t know,” he said. “And this is the sort of thing that you need to have a public debate on.”

Snowden revelations

By the summer of 2013, nobody could feign ignorance anymore. Edward Snowden made sure of that. The 31-year-old former NSA contractor handed over a trove of classified documents to journalists after watching Clapper’s testimony.

“He saw deceiving the American people as what he does, as his job, as something completely ordinary,” Snowden subsequently told Wired Magazine.

The Guardian newspaper published the first explosive revelation in June: A secret court order compelling Verizon, one of the largest telecom companies in the country, to hand over the call records of all its customers to the NSA. This metadata included phone numbers as well as the time and date of calls.

More than a decade after 9/11 and a lonely senator’s warning about authority without oversight, a robust debate about the Patriot Act erupted. Justin Amash, a freshman Republican representative from Michigan, introduced a bill to cut funding to the NSA’s bulk metadata collection program that July. His measure failed 205-217 in the House.

“At the time, many privacy advocates were surprised by how close it came to passage,” Laperruque said.

USA Freedom Act

Sensenbrenner, the Republican co-author of the Patriot Act, then had his Pauline conversion. The representative from Wisconsin introduced the USA Freedom Act, which aimed to reform his Frankenstein by ending the bulk collection program.

The USA Freedom Act has gone through a torturous legislative gauntlet of compromise and revision.

Under the current version, the NSA would no longer keep telephone metadata in a central database. Instead, the various telecommunication companies would retain the records of their customers.

Authorities would then seek permission from a secret intelligence court to use a specific selector term to search those databases. A selector term can be a person’s name, phone number, address or personal device.

“But it also says you can’t have something overly broad like a geographic area – a state or a city or a zip code,” Laperruque said. “You can’t have something like an entire telephone company or remote computing service.”

The legislation does not address what’s been called the “backdoor loophole.” Under a separate law called the FISA Amendments Act, Section 702 empowers the NSA to collect Internet and telephone metadata in bulk on foreign targets overseas.

“In practice, a lot of Americans information gets swept up for a lot of reasons, not least of which that foreigners speak to Americans,” Liza Goitein, an expert with the Brennan Center for Justice, told DW.

“We leave in a globalized society and international communication happens all the time.”

Race against the clock

Built into the Patriot Act is a sunset provision in which the bulk collection program under Section 215 will expire if it’s not re-authorized by June 1st. Congress is now racing against the clock.

“This is not an issue that Congress can just kick the can down the road on,” Laperruque said. “That’s why the sunset is there in the first place. When this law was created there was definitely an acknowledgement that it was controversial and it would require re-evaluation.”

Earlier this month, the Republican-controlled House passed the reform bill in a decisive 338-88 vote. Most of the 88 who voted against the USA Freedom Act did so because they thought the reforms didn’t go far enough.

“The libertarian wing of the Republican party has been on the rise for a long time and I think that dynamic has made a difference,” Goitein said. “It’s become a bipartisan issue.”

But last weekend, the Republican-controlled Senate stumbled. Not only did the reformers fail to pass the USA Freedom Act, the surveillance hawks also failed in their effort to re-authorize Section 215 of the Patriot Act.

Now the Senate is trying to find a compromise. For the first time in the post-9/11 era, there’s a real possibility that the bulk collection program targeting Americans could expire altogether.

“The Patriot Act will not exist as it did before after Sunday,” Goitein said.

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