< Re-upping the Patriot Act


Friday, March 05, 2010

BROOKE GLADSTONE: Last week Congress reauthorized for another year three key surveillance provisions of the Patriot Act set to expire. Also last week, we spoke with Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, who noted that the laws that governed data collection prior to the Patriot Act were a response to Johnson and Nixon era abuses, when governments spied on war protestors.

SHANE HARRIS: But these were laws that were written in a time when there were comparatively few ways to actually gather data – tapping a phone, using a satellite.

BROOKE GLADSTONE: In the digital age, he says, we're drowning in unconnected data dots, and our focus should be on connecting them.

SHANE HARRIS: So I concluded that we need to have our laws focus not so much on the collection and the acquisition of data but on setting rules and procedures for what the government actually does with those databases.

BROOKE GLADSTONE: Harris told us this week that the three newly extended provisions of the Patriot Act will contribute to a flood of dots but will do little to connect them.

SHANE HARRIS: One is the lone wolf terrorist provision. This allows the government to basically start monitoring someone who is not known to be an agent of a foreign power or a member of a terrorist organization. The records provision allows them to go on continuing to collect business records, financial records, potentially library records. And then the third provision is for what’s called roving wiretaps, which allows the government to monitor an individual, regardless of whether he’s using a cell phone or switching between cell phones. They can follow him from one phone to the next.

BROOKE GLADSTONE: Was there any attempt in the reauthorization to rein in or adjust any of these provisions?

SHANE HARRIS: There was. There was a proposal to get rid entirely of the lone wolf provision. The government has actually stipulated that they've never actually used that particular tool but the Obama administration wanted to reserve the option. And then for the other two key provisions, for roving wiretaps and for some of the record searches, some members of Congress wanted to insert a stipulation that these could only be used in connection with terrorism investigations and foreign espionage cases. But those restrictions also failed. Frankly, I think the mood in Congress is not really high right now for trying to restrict these tools.

BROOKE GLADSTONE: There’s a popular media perception that Democrats don't stand up against the Patriot Act because they want to appear tough on terrorism, especially in an election year.

SHANE HARRIS: I think there are certainly some Democrats who would prefer not to have this fight. But, frankly, I think that’s also a very sort of convenient explanation. There are probably a lot more Democrats than would like to admit it [LAUGHS] that actually favor having these tools in place and having the law stay the way it is. I mean, people often talk about how after 9/11, the Patriot Act was very hastily passed. And while it was passed very quickly, a lot of the provisions that were in there were actually the result of some Democratic senators and changes to surveillance law that they had been trying to make for a long time, and it passed with nearly unanimous support.

BROOKE GLADSTONE: But Shane, it also passed largely unread by many members of the Congress. A lot of people didn't know what they were voting for.

SHANE HARRIS: That’s true, a lot of people didn't know what they were voting for. However, a lot of the key senators and members of Congress who were responsible for crafting that bill gave assurances to their colleagues that what was in that bill was necessary. And I think the question is whether or not, when push comes to shove, Democrats or Republicans are willing to stand up and say, yes, it’s time to dial these things down. But again, you don't see many members of Congress really willing to get behind that right now. And I think probably it’s because a lot of them think maybe it’s working or I don't want to be the one to shut it off.

BROOKE GLADSTONE: Do you think it’s working?


[BROOKE LAUGHS] I think, you know, I'm not very, you know, optimistic about the collection of information being the solution to all these problems. And it’s not at all clear to me that the FBI has been judicious in their use of some of these powers. I mean, we know, for instance, that in the case of National Security Letters which are these orders that allow them to gather up all kinds of records and information that power has been abused. It’s been very clumsily applied, maybe inappropriately applied in some cases. But there are some things, for instance, like the roving wiretap provision – I mean, that is one that seems to me to make total sense. In this day and age, when it is just given that a terrorist or a spy or even a common criminal is going to do whatever he can to cover his tracks - dispose of cell phones, use multiple email accounts - you've got to have a way for the government to be able to follow him.

BROOKE GLADSTONE: What kind of effect do you think the reauthorization will have on journalists and on regular people?

SHANE HARRIS: Will it continue to make some people more cautious in their communications? I think so. Will it increase the suspicion that the government is interested in getting access to library records and to business records? Yes, it will. Particularly, I think, it’s going to upset a lot of people who wanted to see or who have been waiting to see Democrats, in particular, kind of stand up on some of these issues, and this is just a reminder that, you know, the surveillance state is sort of [LAUGHS] becoming increasingly just a solid reality.

BROOKE GLADSTONE: Do you see this as a distraction from the larger problem, in your view, of putting mechanisms in place that will enable us to connect the dots?

SHANE HARRIS: It is distracting and taking a lot of energy away from this other question of how do you put the systems in place to connect the dots. When I talk about this over-focus on legislating the collection part, that’s what the Patriot Act [LAUGHS] really kind of embodies is this arguing over, well, can you have access to that record or this record, and what about the lone wolf? And not that those are unimportant questions, but there’s only so much sort of space in the legislative window to talk about these issues. And if it’s being consumed with all of this part of the discussion, it leaves very little time for the issues of what do you actually do with this stuff when you get it.

BROOKE GLADSTONE: So if the President doesn't really want to stand up against it and if the Democrats don't really want to stand up against it, then I guess the only people who are left standing are the librarians.

SHANE HARRIS: [LAUGHS] And they are a hearty bunch, too.

BROOKE GLADSTONE: Shane, thank you very much.

SHANE HARRIS: It’s my pleasure.

BROOKE GLADSTONE: Shane Harris is a reporter for The National Journal and author of The Watchers: The Rise of America’s Surveillance State.