Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities

By Julian Sanchez

Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers have an opportunity to review the sweeping expansion of domestic counter‐terror powers since 9/11 and, with the benefit of a decade’s perspective, strengthen crucial civil‐liberties safeguards without unduly burdening legitimate intelligence gathering. Two of the provisions slated for sunset — roving wiretap authority and the socalled “Section 215” orders for the production of records — should be narrowed to mitigate the risk of overcollection of sensitive information about innocent Americans. A third — authority to employ the broad investigative powers of the Foreign Intelligence Surveillance Act against “lone wolf” suspects who lack ties to any foreign terror group — does not appear to be necessary at all.

More urgent than any of these, however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. Congress should resist recent Justice Department pressure to further broaden the scope of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.