Shifting Tides

“The Senate is in gridlock, but the tides are shifting,” said Michael W. Macleod-Ball, acting director of the American Civil Liberties Union’s Washington legislative office. “For the first time, a majority of senators took a stand against simply rubber-stamping provisions of the Patriot Act that have been used to spy on Americans.”

I hope that Macleod-Ball is correct. Senator McConnell’s grip on the Republican votes proved strong enough to defeat the House’s Freedom Act bill, but insufficient to pass legislation to extend the material portions of the USA-Patriot Act that both Bush and Obama administrations have used in defense of the bulk collection of telephone metadata since 2001.  

Snowden contributed to this shift. These provisions have long survived sunsets. Not once since 2001 has Congress failed to extend their life. While not a surprise to anyone familiar with the USA-Patriot Act and a passing acquaintance with telephony technologies, the practice nonetheless shocked the conscious of the populous when Snowden’s disclosures spelled out the meaning of what was at stake both qualitatively and quantitatively in that practice. Congressional hearings furthermore revealed that, notwithstanding such a broad sweep, the information has not assisted a single terrorist investigation to date, fourteen years into the experiment and with no lack of attempts on the part of terrorists to ply their tortured trade.

A failure to pass the Freedom Act, or to re-up the sunset provisions of the U.S.A.-Patriot Act, will not end debate on the subject of electronic government surveillance. McConnell will look poorly if his drive to shoot down the Freedom Act results in an expiration of the sunset provisions; no doubt he will ride his majority leader horse back into some form of compromise between the House’s bill and those Republicans in the Senate over whom he exercises a controlling grip. And nota bene, the House’s bill would end government collection of the metadata, but not access.  Law requiring Internet Service Providers to keep the data will replace current business process, which raises an interesting question for higher education. Do college and university networks fall under these proposed provisions, and does anyone representing higher education in Washington have an opinion on it? Maybe I am not on the right list services, but I have not heard a peep.

This debate is good for the country. Enough time has passed since the legislative knee-jerk response to the events of September 11, together with experience on experiments such as National Security Letters and bulk collection of telephony metadata (and more), for us all now to sit down and think through where the United States stands on time honored questions of Fourth Amendment jurisprudence in the Internet age.  Various attempts to reform the Electronic Communications Privacy Act have failed, largely due to the lack of adequate public engagement. The LEADS Act, which addresses one aspect of legal access and enjoys bipartisan support (!), stands on its own merits.  It also offers an on-ramp to get Congress and the public talking about a comprehensive approach. Legal scholars, privacy advocates, national security supporters have batted the privacy-security ball back and forth across the net enough. It is time now for the public to get into the game. Lest instead the simple “I hope” statement that began this post will turn into a paraphrase of Hemmingway’s sad, sardonic “wouldn’t it be pretty to think so.”