The Phony Surveillance Debate
If any terrorists are reading this column, now would be a good time to turn on C-Span 2. For the next few days, you guys got it made. Section 215 of the Patriot Act has expired and the Senate has only just started debating the bill that would renew and tailor these authorities.
So if you suspect you might be under investigation, go ahead and switch burner phones. No more roving wiretaps. Feel free to contact any compatriots inside the United States on a landline. No more bulk collection of telephone metadata. Gather ye rosebuds. Carpe diem.
This at least is what the White House and others would have you believe. Speaking on "Face the Nation" on Sunday, CIA Director John Brennan warned that terrorists are monitoring the Congressional debate carefully "looking for the seams to operate within." President Obama himself warned on Saturday that terrorists like al Qaeda and the Islamic State "aren’t suddenly going to stop plotting against us at midnight tomorrow. And we shouldn’t surrender the tools that help keep us safe." What happened to the Barack Obama of 2008, who warned voters about the politics of fear?
Well, in this case it's more "politics" than "fear." It's true that part of the Patriot Act has expired, including the piece that the government interpreted as giving it the authority for bulk collection of telephone meta-data. And it's not coming back. The Senate is likely to pass the USA Freedom Act, which will require the NSA to search out connections between suspicious phone numbers using data stored by the telecom companies, rather than data banked by the NSA itself. The Patriot Act's "lone wolf" and roving wiretap powers will be restored in the USA Freedom Act.
But what about these vulnerable days in the meantime? The reality is they're not very vulnerable. There are probably workarounds that let the government continue its surveillance of bad guys, citing authorities other than the lapsed provisions of the Patriot Act or even relying on some "fuzziness" in the Patriot Act, to use Senator Bob Corker's term from Sunday night.
There is Section 702 of the FISA Amendments Act, which gives the NSA the authority to monitor electronic communications of non-citizens. Given the interconnectedness of electronic communications, this provides an important tool for snooping on terrorists dumb enough to still use email.
The worst terrorist group these days does a lot of its business in public. The Islamic State recruits and signals its followers on Twitter. This gives all of us the opportunity to play NSA and monitor communications from the group with cutting edge technology like Tweetdeck.
This is not to say that terrorists do not also have more clandestine ways of communicating. Al Qaeda, for example, developed an encrypted Internet-based communications system. U.S. officials have also warned that terrorists have changed how they communicate since some of the disclosures by former NSA contractor Edward Snowden.
So it's clear the proponents of government surveillance are exaggerating. But their opponents are grandstanding as well. Senator Rand Paul, the libertarian Republican running for president, has portrayed himself as a wrestler about to take on Obama and the security state. But even Paul acknowledges that the authorities he allowed to expire will be reauthorized soon enough in the USA Freedom Act. What's more, while Paul has framed his fight as one with Obama, it was Obama that empaneled a Privacy and Civil Liberties Oversight Board that concluded the bulk collection of metadata was unnecessary to stop terrorists.
It's natural to wonder how genuine Paul's interest in privacy is. Does his campaign -- like almost all campaigns these days -- buy cell phone data on voters? In the past few years, companies have sprung up to help candidates maximize their political dollars by sifting through purchase patterns, phone records and all kinds of other electronic data of their constituents. This isn't exactly spying. It's more like targeted data mining or consumer research.
On Sunday evening I asked Representative Justin Amash, a Republican ally of Paul's who was at the Senate for the debate, why it is OK for campaigns to collect this kind of metadata, but not for the NSA to do so. "Because campaigns can't put people in prison," he responded.
That's true. But this would be a strange moment for the republic if the government powers had truly lapsed. Data collection for the national security state would seem more restricted than data collection for politicians. But it's all just politics and posturing. Bottom line for terrorists: You're still being watched.
(Corrects television show John Brennan spoke on in third paragraph.)
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