Following the attacks of September 11, few on Capitol Hill were prepared to vote against something dubbed “The USA Patriot Act.” Congress is now considering the USA Freedom Act, a bill intended to reign in the National Security Agency’s bulk collection of Americans’ telephone data under Section 215 of the Patriot Act and make other surveillance reforms. Section 215, along with two other provisions, will sunset on June 1 of this year without Congressional action. Just last week, the Second Circuit Court of Appeals deemed the Section 215 bulk record collection unauthorized. And on Wednesday, the House of Representatives passed the USA Freedom Act and sent it to the Senate.
The debate surrounding the bill, however, has failed to adequately discuss these programs in the context where they have had the biggest impact: criminal prosecutions. Specifically of concern are provisions that provide for an increase in the maximum sentence for a vaguely worded offense called “material support” and an extension of the Patriot Act’s “Lone Wolf” surveillance powers and “Roving Wiretaps” program. And, in particular, quite troubling is the ongoing lack of notice to those accused of wrongdoing regarding the source(s) of evidence obtained through these and other broad surveillance powers.
The Act also extends through 2019 a provision targeting what are referred to as “lone wolves,” or non-U.S. persons who are not affiliated with any particular terrorist organization. The lone wolf provision operates to unnecessarily expand the reach of extraordinary anti-espionage surveillance powers well beyond their original purpose, and with little to no transparency. As Julian Sanchez at the Cato Institute wrote in 2009, “the lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects — and in the process, against any Americans who happen to have interactions with them.”
Finally, the USA Freedom Act would similarly extend the Section 206 “Roving Wiretap” authority program. This authority allows the FBI to monitor every phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name. While supporters point to roving wiretaps as something that has been used in criminal investigations for decades, in fact the Patriot Act’s roving wiretap authority abandons the need to identify the target with specificity. Orders are issued using a lower legal standard than the "probable cause" used in criminal cases and are subject to substantially less judicial oversight than criminal wiretaps.
Taken together, the Section 215 bulk data collection discussion should not be happening without addressing what the government is doing with all of this information it is collecting. Authorities are data-mining these vast pools of information collected on a more relaxed standard that the Fourth Amendment requires and using these records in a wide array of domestic prosecutions without providing notice to defendants and their counsel. At a minimum, those accused of a crime must be advised of the actual sources of the evidence being used against them to have an opportunity to challenge its accuracy and the legality by which it was obtained.
In the dark days following the September 11 attacks, even the Congress that hastily adopted the Patriot Act understood the extraordinary nature of what it was enacting. Congress built in sunset provisions which, by their nature, were intended to force Congresses to reassess these programs after understanding how they were being implemented. There is a pressing need to reform the way in which the government is conducting surveillance, but the USA Freedom Act falls far short of implementing the kind of protections that are required. Any reform bill that moves forward should not create new surveillance authorities or increased sentences, and needs to go further to curtail the abuses exposed in recent years.
Simon is the president of the National Association of Criminal Defense Lawyers.