A Sunset is a Beautiful Thing

Jennifer Granick, writing in Forbes magazine, explains why the best thing Congress could do regarding Sec. 215 of the PATRIOT Act, is just let it expire.

With the Senate scheduled to began debate on whether or not to extend Sec. 215 and the other “sunsetting” PATRIOT Act provisions, Campaign for Liberty is redoubling our efforts to kill these provisions one and for all.

Please support our efforts by signing your “I Object!” Citizen’s Objection to Senate Majority Leader Mitch McConnell and please contribute to our Stop the Surveillance State Round Two Banner Bomb.

Read Jennifer Granick’s column here with excerpts below:

If Congress does nothing, section 215 will sunset. And this is exactly what reformers should be asking for. The fact is, sunset is the only thing that will definitely stop massive spying under section 215. It won’t stop mass surveillance more generally, but killing the law that NSA and FBI have abused for years is the first step.

Some reformers support the USA Freedom Act (USAF) passed by the House of Representatives, which would prohibit “bulk” collection on everyone but still allow “bulky” collection potentially effecting hundreds of thousands of people. Section 215 as people understood it when passed didn’t allow this. But after the NSA’s bastardized interpretation of 215 was accepted by the FISA court, and after years of an indiscriminate phone dragnet, USAF was a compromise between reauthorizing dragnet surveillance and assuring less dragnet surveillance plus some oversight and transparency safeguards.

That was then, but this is now. USAF was negotiated at a time when straight reauthorization was a real danger. It no longer is. USAF was negotiated at a time when the only judges ruling on the dragnet were FISA court judges approving it. A few weeks ago, however, the Second Circuit issued a stinging rebuke to the NSA and those FISC judges, ruling that Section 215 doesn’t allow dragnet surveillance.

USAF was negotiated at a time when we had very little information on whether and how the FBI, as opposed to the NSA, was using the provision for dragnet spying on Americans. In fact, USAF exempts the FBI from certain reporting requirements. But just this week, the government released a Department of Justice Inspector General (IG) report yesterday, which tells us the FBI has also been abusing section 215 for bulk collection. The Justice Department, supposed to oversee the FBI, for seven years failed to create privacy rules required by the permissive FISA Court. Perhaps the worst part is that the FBI has, get this, a classified definition of what it means to be a United States Person entitled to privacy protections under intelligence laws. You don’t even know if you are entitled to be treated as an American or not. If this doesn’t blow your mind, you aren’t paying attention. This is a great reason to hold off on USAF. We can’t be sure USAF fixes the problem if we are still learning what the problems are.

Indeed, the NSA itself has called the USAF “a nothing burger” that won’t affect its capabilities at all. Given that no one who has overseen the program, not the President’s Review Group, not the Privacy and Civil Liberties Oversight Board, not the Congress, not the DOJ IG, has a single example of this dragnet program keeping people safe, we want the capability, spying on Americans, taken away.