If ever there was a poster child for a draconian legislative reaction to a crisis, it would be the mass surveillance USA PATRIOT Act of 2001.
Ushered in after the September 11th terrorist attacks, many of the clauses and provisions from the PATRIOT Act continue to this day. President Biden would likely wish we would forget. Afterall, Biden has taken credit for the law and has “repeatedly claimed that a bill he wrote in 1994 was essentially the same as the 2001 Patriot Act.” But just as Biden’s view on the war in Afghanistan has evolved since the time he was a supporter, so too should he reconsider his advocacy of the law that has become one of the worst civil liberties abuses of the 2000s.
Armed with the PATRIOT Act, the government, chiefly the National Security Agency (NSA), enacted sweeping dragnet policies such as bulk metadata collection, wiretaps, and other domestic surveillance measures. It authorized indefinite detentions, gave law enforcement generous allowances for gag orders and searches of private business records not previously enjoyed by the government.
It was not just 9/11 on the minds of politicians. Few may recall that the 2001 Anthrax Attacks also played an important role in the legislation’s provisions. Just one week after the September 11th attacks, letters containing anthrax spores were sent across America, creating the worst biological attack in American history.
In response to the anthrax, the FBI’s investigation became one of the largest and most complex law enforcement operations. The Bush Administration was quick to suggest that Al-Qaeda leader Osama Bin Laden might have been responsible for the anthrax attack.
With the public in a state of panic, the government sought a powerful “anti-terrorism” bill, which amounted to the power to surveil Americans en masse and to probe their personal communications.
As the ACLU pointed out, the PATRIOT Act increased the government’s power to spy in four key areas:
- Records searches. It expands the government’s ability to look at records on an individual’s activity being held by a third party.
- Secret searches. It expands the government’s ability to search private property without notice to the owner.
- Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information.
- “Trap and trace” searches. It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content.
This allowed the government to skirt around requirements to show evidence that the subjects of search orders are an “agent of a foreign power.” When asking for permission for covert searches the FBI was no longer required to demonstrate any reasonable suspicion for certain records. Judicial oversight was also butchered. The government needed only to make a broad assertion that what they were doing was acceptable. As the ACLU once stressed, the judges hearing these certifications lacked the authority to reject government search applications. Moreover, it was not just incriminating activities that could get people in hot water. The nature of these FBI searches could be based on a person’s First Amendment rights, including what a person wrote, what books they read, or websites they visited.
In 2007, an amendment to the Foreign Intelligence Surveillance Act (FISA) called the Protect America Act further broadened the government’s surveillance. This time, during Bush’s second term. With the FISA Act, its amendments, and the PATRIOT Act, the Federal government authored the most expensive surveillance network in history. Thanks to the 2013 Edward Snowden leaks we learned more than what was just committed to the legislative record of those Acts.
We found out that the NSA syphoned data across the internet backbone and accounts of Yahoo!, Google, and Microsoft users. The Foreign Intelligence Surveillance Court ordered cell phone logs of Verizon customers to be turned over. Bush created a secret “President’s Surveillance” (PSP) collection of activities that allowed wiretapping and data mining of domestic communications, including email and internet activity. An NSA tool “allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.” The NSA receives data from British GCHQ fiber optic taps, such as “vast quantities of global email messages, Facebook posts, internet histories and calls.” The NSA broke into the data centers of Yahoo! and Google and received millions of records per day. The CIA and NSA surveilled Japanese officials and EU allies, including the surveillance of Chancellor of Germany Angela Merkel which lasted for nearly a decade. The NSA hacks foreign phone companies, actively monitors computers worldwide, while also tracking mobile phone locations from all over the world.
In the original passage of the PATRIOT Act, many provisions were set to expire after the 2005 calendar year. In the summer of 2005, however, Congress passed a reauthorization bill.
In 2010, the FBI formally closed the anthrax case which was said to be a key component to the passing of the PATRIOT Act. The FBI declared a “troubled” Bruce Ivins to be the sole culprit. Ivins worked as an army biologist from Fort Derrick, Maryland, and had no demonstrated ties to Al-Qaeda or Osama Bin Laden. Ivans committed suicide in 2008 before charges were filled.
However, the surveillance state did not roll back. In 2011, President Obama continued Bush’s reign and signed another extension of many key provisions of the PATRIOT Act, and in 2015 Obama codified key provisions of the original legislation by signing the USA FREEDOM Act, thereby preserving much of the federal government’s surveillance powers with few notable changes. On March 18, 2020, the provisions were once again extended.
Today, the national government’s surveillance apparatus clearly flies in the face of the Fourth Amendment by permitting warrantless searches and lowering government standards for the collection of evidence. But the abuse is far reaching. Constitutional attorney John Whitehead, founder of the Rutherford Institute, has been quoted as saying, “the Patriot Act violates at least six of the ten original amendments known as the Bill of Rights—the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments—and possibly the Thirteenth and Fourteenth as well.”
To this day, the USA PATRIOT Act and USA FREEDOM Act serve as the worst examples of what Constitutional scholar Robert Levy called the “looming sacrifice of civil liberties at the altar of national security.”
And all of this for what? It is unclear if NSA mass surveillance has ever thwarted a single terrorist attack on the United States. In 2013, NSA Chief General Keith Alexander claimed that intelligence stopped “54 different terrorist-related activities.” However, his figure has come into question and has never been verified.
In 2013, there was a Senate Judiciary Committee hearing on privacy rights and national security that concerned NSA surveillance and its efficacy on counterterrorism. Senator Patrick Leahy (D-Vt) who chaired the committee stated, “We’ve heard over and over again the assertion that 54 terrorist plots were thwarted. … That’s plainly wrong, but we still get it in letters to members of Congress, we get it in statements.”
Only thirteen of the fifty four cases cited were related to the United States. Two additional cases were debunked because the government was able to get the information from other intelligence, and one case was debunked because it was not even a terrorist plot. One of the cases the NSA points to was reviewed by the US Court of Appeals for the Ninth Circuit: the court concluded that the collected phone records were not pivotal in the case. It is similar with the other cited cases—it is unclear if mass surveillance played a meaningful role.
After a 2013 White House panel on NSA surveillance, one of the reviewers was asked if the mass surveillance stopped any terrorist attacks: he said, “We found none,” and the panel recommended ending the phone-record collection program. In 2019, the NSA recommended dropping its phone surveillance program, a significant portion of their previous information-gathering endeavors, due to inefficacy.
After the NSA stopped bulk collection of phone records from domestic companies, a former Bush administration analyst said the NSA actually became more effective, transparent and protective of privacy after the reforms stemming from the Snowden leaks, with former Attorney General Eric Holder agreeing.
Biden could continue this momentum of transparency and better privacy policies. He is already intimated that metadata collection should have required warrants. But at the same time his administration seems eager to increase online surveillance. Biden’s bipolarity on privacy should end. He should pull out of Bush’s unconstitutional war on privacy and kill the remnants of the Patriot Act.
Jonathan Hofer is a Research and Marketing Associate at the Independent Institute. A Political Science graduate of the University of California, Berkeley, his research interests include privacy law, student privacy, local level surveillance, and the impact of emerging technologies on civil liberties.