Time to Debate the Patriot Act

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This month we discovered that our government has been conducting a top secret, pervasive, and ongoing surveillance of millions of Americans who have not been charged with –– or even suspected of –– breaking the law. Despite the unparalleled scope and nature of this snooping, a lot of important people are telling us not to worry that the National Security Agency is collecting our telephone records and the data regarding what we search, read, and view on the web.

President Obama assures us that no one is listening to our calls or reading our e-mails. Dianne Feinstein, chair of the Senate Intelligence Committee, says Congress is on the job, ensuring that the NSA’s programs are not infringing the rights of American citizens. Army Gen. Keith Alexander, director of the National Security Agency, testified to Congress that the surveillance programs “assist the intelligence community to connect the dots” and are critical in the fight against terrorism.

Government officials are not the only people telling us to take a deep breath. Last week New York Times columnist Thomas Friedman argued that the greatest threat to civil liberties is not government surveillance but another 9/11. “That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses –– and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress –– to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime,” he wrote.

We can all agree that another 9/11 attack would be disastrous. But at a time when there are new revelations almost every day about the extent and nature of the NSA’s surveillance program, it is premature to conclude that it isn’t a serious threat to our right of privacy and the First Amendment right to associate and speak freely.

Booksellers already know enough to be worried. We have spent a lot of time and energy for more than a decade trying to get changes in the law the NSA is using in its phone collection program –– Section 215 of the USA Patriot Act.

Following the passage of the Patriot Act, which Congress approved just weeks after the 9/11 attacks, we were shocked to discover that Section 215 gave the government the right to demand “any tangible thing” in a national security investigation, including bookstore records. 

Booksellers have long opposed government fishing expeditions in customer records as a threat to privacy and the freedom to read. Kramerbooks in Washington, D.C., and Barnes & Noble vigorously fought Independent Counsel Kenneth Starr’s effort to subpoena Monica Lewinksy’s book purchase records in 1997, during his investigation of President Clinton. In 2000, the Tattered Cover Book Store in Denver went to court to quash a search warrant for the records of books purchased by a customer suspected of manufacturing methamphetamine.

However, Section 215 of the Patriot Act makes it very difficult for bookstores to protect customer records. In a national security investigation, it is no longer necessary for the government to demonstrate that there is “probable cause” to believe that the person whose records are sought is suspected of illegal conduct. Section 215 also prohibits booksellers from telling anyone that their records have been searched.  For a few years after the passage of the Patriot Act, it wasn’t even clear that the 215 orders could be challenged in court.

Booksellers played a prominent role in the fight to amend Section 215. In 2004, they joined librarians, publishers, and authors in launching the Campaign for Reader Privacy to restore the safeguards for reader privacy that had been eliminated by Section 215. The book community rallied around the Freedom to Read Protection Act, which had been introduced by Rep. Bernie Sanders (I-VT), and the Library, Bookseller and Personal Data Privacy Act, sponsored by Sen. Russ Feingold (D-WI). Bookstores and libraries collected hundreds of thousands of signatures on petitions.

At the time, we received many of the same assurances that we are hearing now. Rep. James Sensenbrenner (R-WI), then chair of the House Judiciary Committee, insisted that Section 215 would not be abused because the FBI had to get a warrant from a special court established by the Foreign Intelligence Surveillance Act. We were concerned because the Foreign Intelligence Surveillance Court deliberates in secret and only hears the government’s arguments. But we drew some comfort from the fact that a judge would be reviewing any request for bookstore or library records.

Thanks to Edward Snowden, the man who blew the whistle on the NSA, we now know that in 2006 the Foreign Intelligence Surveillance Court authorized the government to begin collecting records of all of our phone calls and storing them for the day when they have a lead they want to pursue. When that happens, it is not a judge who decides whether there are adequate grounds for a search but an NSA analyst applying a set of rules created by NSA.

This was shocking news — and not only for those who have been calling for the reform of the Patriot Act. Sensenbrenner, who describes himself as the author of the Patriot Act, is furious. “I am extremely disturbed by what appears to be an overbroad interpretation of the Act,” he wrote Attorney General Eric Holder on June 6. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?” In the letter, Sensenbrenner suggested he might oppose reauthorization of Section 215 when it comes up for renewal in 2015 “if such abuses are not reined in.”

President Obama claims that he has taken steps to improve privacy protections. “I came in with a healthy skepticism about these programs,” he said recently. “My team evaluated them. We scrubbed them thoroughly.  We actually expanded some of the oversight, increased some of the safeguards.” Administration officials say that they only searched 300 of the millions of phone records they collected last year.

But some members of Congress are not satisfied. Bernie Sanders, still representing his home state of Vermont, but now as a U.S. Senator, has introduced legislation that would narrow Section 215 by requiring the government to show that there are “specific and articulable facts giving reason” to believe that the records sought are relevant to an authorized investigation. Presumably, this would make it impossible for the government to engage in bulk collection of personal data. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) are cosponsoring a similar bill. Representatives John Conyers (D-MI) and Justin Amash (R-MI) have introduced reform legislation in the House.

The introduction of these bills is important. The last meaningful debate of the Patriot Act occurred in 2008. The Campaign for Reader Privacy and our allies came very close to amending the law in ways that would have forced changes in the NSA surveillance program. The Senate approved a bill that significantly improved privacy protection, but the House refused to go along.

Advocates of increased protection for civil liberties recognize that terrorism is and will remain a very real threat. But we believe that every new security measure must be weighed against the potential loss of freedom. Government secrecy makes this difficult. We are usually forced to depend on our representatives in government to do the job for us. When we are given the opportunity to come to our own conclusions, we have a duty to debate government policies vigorously.  

The NSA controversy gives us an opportunity to resume the debate over Section 215 with a new awareness of how it threatens our rights. Considering the enormous publicity generated by Edward Snowden’s revelations, it seems unlikely that Congress can re-authorize Section 215 again without addressing the important questions being asked by both Snowden and James Sensenbrenner, individuals who probably agree on very few issues.

Tom Friedman and others may believe that there is nothing more to discuss about the NSA surveillance program. But the debate is only beginning.