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The sunset provisions were built into the Patriot Act precisely to force Congress, and the American public, to reconsider the surveillance powers the law granted once more was known about their impact on civil liberties. (Image: file)

An Extension of the Patriot Act Is a Vote for Unconstitutional Snooping

Patriot Act provisions don't give government right to spy on you without just cause

Michelle Richardson

When you hear the phrase "Patriot Act," if you think of massive government surveillance, top-secret data collection, and the enormous National Security Agency program gathering information about Americans' phone calls, then you're likely thinking of Section 215.

Section 215 is known as the "business records" provision of the 321-page Patriot Act. On paper, it allows federal agencies to obtain secret court orders to compel third parties to turn over "any tangible thing" that is "relevant" to foreign intelligence or terrorism investigations. In practice, the phrase "any tangible thing" has meant almost anything surveillance agencies want it to, while the word "relevant" has meant almost nothing at all.

"Voting for reauthorization of Section 215 now would not just be a missed opportunity for a serious debate about the role of government surveillance in our democracy; it would be an endorsement of the unconstitutional surveillance programs we already know exist, and a tacit endorsement of those we're still in the dark about."

And so it is Section 215 that is used to run the broadest-reaching domestic spying programs ever launched against the American public — including the NSA dragnet that for years has been sweeping up a record of almost every phone call made or received by Americans. Early this month, a federal appeals court found that the call-records program was never even authorized by Congress.

As a former ACLU lobbyist in Washington D.C., and a congressional staffer of a committee overseeing these programs, I was assured for a decade that the Patriot Act wasn't used to spy on everyday Americans. Yet now we know that Section 215 is used for precisely that purpose, and despite America's outrage about these programs, they have continued for two years since the Snowden revelations.

The administration has been clear that although it agrees the program really isn't necessary, it will continue until Congress rewrites the law. Because Congress provided an automatic expiration in Section 215 for June 1 of this year, Congress is debating whether to do that rewrite now, let Section 215 expire, or continue domestic spying unabated.

Like many issues, Florida and its congressional delegation are influential in this debate. In fact, its senators could determine whether mass surveillance continues in the U.S. Last year, the U.S. House passed a modest, bipartisan reform bill. When the Senate scheduled its vote, Sens. Bill Nelson and Marco Rubio both voted to filibuster the reform bill, a filibuster that survived by — you guessed it — two votes. Florida's senators are quite literally the last obstacle to ending mass surveillance on Americans.

What our senators need to understand is that the government simply does not have the right to spy on you without a legitimate reason to believe you've done something wrong. This principle, built into the backbone of our country as the Constitution's Fourth Amendment, has always been a core principle of the American justice system. The use of Section 215 of the Patriot Act to collect huge amounts of data on all of us has turned this foundational idea on its head.

The question before Congress and the American people now is whether that provision should be renewed. The answer is a clear and resounding no.

The sunset provisions were built into the Patriot Act precisely to force Congress, and the American public, to reconsider the surveillance powers the law granted once more was known about their impact on civil liberties. The truth about how Section 215 is being interpreted has been laid bare — Congress can no longer pretend not to know how the Patriot Act is being used against Americans.

This year is the first clear up-and-down vote on Section 215 since the Edward Snowden revelations. Florida's senators need to side with the Fourth Amendment and our constitutional right to privacy. Voting for reauthorization of Section 215 now would not just be a missed opportunity for a serious debate about the role of government surveillance in our democracy; it would be an endorsement of the unconstitutional surveillance programs we already know exist, and a tacit endorsement of those we're still in the dark about.


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

Michelle Richardson

Michelle Richardson is a legislative counsel in the American Civil Liberties Union’s Washington Legislative Office working on cybersecurity, surveillance, and privacy.

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