By Tom Cushing
Whither the 215?Uploaded: May 11, 2015
No, not the highway connecting Riverside to Temecula (complete with SoCal's semantic "the" affectation), we're talking here about Section 215 of the USA Patriot Act. That law was passed early in the post-9/11 tumult, and later reauthorized. It will expire at month's end, unless reformed or again extended.
Section 215 has been interpreted to allow government collection of bulk telephone "meta-data:" date, time, duration and participants in every phone call you've made in the past five years. It does this because the FISA Courts who secretly approve government applications to collect such data, have done so every 90 days, roughly since the Act was passed.
"Approve" is actually a technical overstatement: since they were established in 1970s, FISA Courts have authorized all but twelve of the 40,000 applications they received from the government (other parties affected by their rulings, meaning we-the-people, are not represented in those proceedings). Their orders have been essentially unreviewable. Until 2013, the bulk collection program, and indeed the FISA courts themselves, were largely unknown to the American public.
Three challenges to the legality of the Section 215 regime are now pending in the federal court system. The first to reach the appellate level was decided last week. In ACLU v. Clapper et al., the plaintiffs challenged both the interpretation of the Section, as applied to the bulk meta-data program, and its constitutionality. Plaintiffs asserted that The 215 doesn't authorize the program, and that it violates citizen rights to privacy and freedom from unreasonable searches and seizures.
The 2nd Circuit Court of Appeals (in the northeast; CA is part of the 9th Circuit's territory) unanimously ruled that The 215 should not be extended to cover the metadata program. They declined to rule on the constitutional issues, because they didn't need to reach them to decide the case ? courts are generally reluctant in that regard. They did discuss the issue, however, leaving little doubt how they'd rule on it if they had-to.
Specifically, The 215 requires the authorities to provide 'reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment)' of international terrorism. The Government argued that such is a deliberately low standard, akin to what a typical Grand Jury may seek in its processes. They also indicated that queries to the amassed data are few, and limited by internal agency rules.
Plaintiffs countered that what is collected is not evidence, at all, but a vast database that contains a gargantuan volume of irrelevant data, from which a nearly infinite number of implications may be drawn about the private lives of the populace ? anyone in America using a phone -- with great potential for abuse. The fact that it is rarely queried actually argues against its relevance, they said.
The appellate court agreed with plaintiffs, ruling that the bulk data differed from the Grand Jury analogy in both its vast quantity and the quality of the information's contribution to relevance. In later thoughts expressed on the Constitutionality issues, the Court was troubled for the same reasons ? citing Supreme Court precedents that allow a GPS device to be planted on a car for a specific purpose, but not to track the vehicle for an unlimited period. At some point, seizure of information that might be relevant tips over into an impermissible dragnet of everything, to be sifted later. These issues are ever more serious, because gathering and rifling through data is precisely what computers do best.
In the meantime, Congress must act on the June 1 deadline that sunsets the Patriot Act. In the House, a tenuous coalition of privacy advocates on the Left, and limited government proponents on the Right has combined to craft the USA Freedom Act. It eliminates The 215, and although it doesn't do everything that the privacy lobby would like, we're talking sausage-making, here.
The Senate, however, would prefer a clean re-authorization of existing law, including The 215. Majority Leader McConnell has signaled a disinclination to compromise ? but Congress adjourns late next week, for a Memorial Day recess lasting into June.
Thus, time is running short for the McConnell position, and it appears likely that the 60 votes necessary to bring something like the House measure to the floor for a vote (over his objection) may be achievable. Thus it appears likely that significant change in the direction of privacy rights is in the offing.
That outcome seems to me to be a good thing. Early in our history, one Ben Franklin opined that those who would give up liberty to achieve greater safety deserve neither. USA Patriot Act was passed in the early post-9/11 era, when erring on the side of caution may have appeared to be a good bargain. In less emotionally fraught times, when we have both very meagre evidence of the bulk collection program's effectiveness and an opportunity to adjust the balance, we really ought to do so.
Meanwhile, Edward Snowden, the insider whose 2013 revelations are the reason we even know this issue exists, continues to live in a Moscow exile. His acts, which he has acknowledged expose him to prosecution, are looking more these days like a public service.