Eighteen Years Later, It Is Time for USA Patriot Act Section 215 to Expire
Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001 on October 26, 2001, roughly six weeks after the September 11th terrorist attacks. The USA Patriot Act codified many surveillance practices that had previously been approved only in court decisions, making them more difficult to change after the crisis had passed.
Section 215 of the USA Patriot Act, Access to Records and Other Items Under the Foreign Intelligence Surveillance Act, amended FISA to permit the collection of tangible things to investigate foreign terrorism and clandestine intelligence. In 2005, U.S. Attorney General Alberto Gonzales and FBI Director Robert Mueller gave testimony to the Senate Intelligence Committee to discuss the pending amendments to the Patriot Act and FISA. At that time, FISA applications for surveillance and search had increased 74% since the enactment of the Patriot Act and none of the 1,758 applications in 2004 alone had been denied. They responded to criticisms that the government was able to target Americans based on the books they read or the websites they visited with a reminder that the language of the text prevents any investigation based solely upon First Amendment protected activity. Although Section 215 was set to sunset at the end of 2005, they recommended that an amendment clarify some of the ambiguity in the text, but that it remain in effect.
In practice, however, Section 215 allowed intelligence agencies to begin to collect metadata. Metadata is “data that provides information about other data.” Prior to the Patriot Act, the information that FBI officials could collect was limited: records of transportation carriers, hotels, and storage lockers. After the Patriot Act, the FBI was able to access education records, computer files, and library borrowing records. Most importantly, Section 215 permitted the FBI to apply for an order without showing that the target was involved in terrorist activity. Rather, the standard was lowered so that the records must be “sought for” a foreign intelligence or terrorism investigation. This lowered standard allowed for indiscriminate and bulk collection of data. For example, in 2013, the FISA Court granted an order to the FBI which required Verizon to provide the NSA information about all phone calls in its systems, including the numbers of both parties, location data, and duration of all calls. Verizon was required to provide this information on a daily basis for a three-month period. However, reports of the government’s misuse of Section 215 started as early as 2006 when reporters uncovered that AT&T, Verizon, and BellSouth had provided the NSA with access to records of billions of domestic calls. Although the text of Section 215 does not permit the government to data-mine Americans’ private communications, the FBI, NSA, and CIA repeatedly misused Section 215 to surveil U.S. citizens. The Second Circuit held that Section 215 did not authorize the telephone metadata collection program and that the program exceeded the scope of what Congress authorized in the statute.
On June 2, 2015, President Obama amended the Patriot Act when he enacted the USA Freedom Act, which extended Section 215 and limited the NSA’s authority to collect U.S. phone records. The Act limited Section 215 to cases where there is an articulable suspicion that the specific term used in obtaining call records is related to international terrorism. It also allowed public companies to inform customers about the surveillance demands they receive.
However, not everyone agrees that such extensive surveillance measures are necessary to fight terrorism. In 2015, the Inspector General of the Department of Justice, Michael Horowitz, released a report just before Congress’s decision to extend Section 215. He reported that “[t]he agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders[.]” While he remarked that agents did consider the collected material valuable in corroborating information or furthering other leads, he confirmed that it was not independently valuable. Specifically, he concluded that zero major cases had been broken due to the Act’s records provision.
The Department of Justice has admitted that the expanded surveillance powers provided by the Patriot Act have not solved any major terrorism cases. However, federal law enforcement has been able to thwart as many as three terrorist plots in one week and prevented 26 plots from 2001-2009. If the FBI and NSA can prevent terrorist attacks successfully, and Sections 215 and 206 have not been used to do so on their own, then law enforcement is able to protect U.S. citizens without these provisions. Law enforcement has enough measures without these provisions to safeguard the United States, so allowing these provisions to sunset would not affect the safety of the United States.
On October 30, 2019, 20 House Democrats signed a letter to the House Judiciary Committee which called for an end to Section 215 and for a reform bill to safeguard against abuse. The letter urged for the Judiciary Committee to rein in government surveillance in order to defend the Constitution and protect their constituents. Notably, the letter called for an end to Section 215 because it disparately affects people of color and vulnerable communities. Congress should use the upcoming sunset deadline to discuss privacy concerns with government surveillance and ultimately let Section 215 expire. This upcoming sunset provides an opportunity for congressmen to educate themselves and their constituents about privacy risks with technology. Further, if Section 215 expired, there would be no substantial impairment to the government’s ability to prevent terror attacks. And finally, the expiration of these provisions is most consistent with Congress’s intent to limit government bulk data collection.