How to Dismantle the Surveillance State After the Patriot Act

Today marks 20 years of the so-called “Patriot Act,” a law passed to “deter and punish” suspected terrorists in the wake of the Sept. 11, 2001, attacks. Many provisions of the law were unconstitutional, many were ineffective. In fact, in 2015 a subsequent law replaced the act. Taken as a whole, however, the effect of the Patriot Act was to cheat U.S. citizens out of their civil rights and cheapen American democracy.

It’s time to dismantle the surveillance state engendered by the Patriot Act. It’s also time to invest in and build alternative technologies that would make the law (partially) irrelevant. Issued in the name of collective security, the law eroded some of the most basic protections you might expect in a liberal democracy.

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“Twenty years of hindsight confirm that expanded government surveillance comes at a steep price for civil rights, our democratic legitimacy and marginalized populations,” American Constitution Society President Russ Feingold wrote in a recently syndicated op-ed. “Congress has a unique opportunity to begin the deconstruction of the surveillance state. It should seize it.”

There is a balance between national security, which requires investing authorities with the ability to detect potential threats and punish wrongdoers, and protecting individual freedoms. We’ve gotten this dance all wrong. The legacy of the Patriot Act is widespread wiretaps, unchecked warrants and a nosy state interested in reading your financial, medical and travel records.

A government that can glance at your email inbox, monitor whom you call and infer your bedside book stack knows far too much about what you’re thinking. Creepy, sure, but also illegal.

As the EFF notes in a fact sheet, the Patriot Act, officially known as the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001″ violates constitutional gaurantees in four keys ways:

• “Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.

• “Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.

• “Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.

• “Violates the Fourth Amendmentby failing to provide notice - even after the fact - to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.”

The majority of American people are not “domestic terrorists,” yet we’re all (potentially) treated as such. The Patriot Act was grafted onto the preexisting Foreign Intelligence Surveillance Act (better known as FISA), which was passed in 1978 to help the government gather foreign intelligence and investigate international terrorism. It applied only to an “agent of a foreign power” and information gathering was limited to “common carriers,” or hotel stays, storage lockers and car rental services, the EFF notes.

Nowadays, just about anyone or anything could find its way onto a watchlist under Section 215 of the Patriot Act. The Federal Bureau of Investigation (FBI), for instance, can obtain a secret court order to monitor any “tangible” assets said to be relevant to a national security inquiry. (This mandate lapsed earlier this year, and was checked partially by the U.S. Supreme Court, but can still be applied to ongoing cases.)

According to Jake Laperruque, a lawyer for the nonpartisan government watchdog Project On Government Oversight (POGO), Section 215 was used to collect records from over 19 million phone calls in 2018 alone. In response to evidence of overcollection, the National Security Agency (NSA) shut down its program.

This might be understandable if it actually provided security, but time and again, the NSA has failed to provide evidence any of this information gathering over nearly two decades has contributed to preempting a terrorist plot. (Though there’s plenty of evidence suggesting would-be terrorists were coaxed into their worst plans.)

What about the anti-terrorist financing or money laundering provisions of Section 314? The Financial Times asked and answered: “Two decades on, it is virtually impossible to define the percentage of funds illicitly moving in and out of the global banking system, away from the prying eyes of global rulemakers.”

Feingold, a former U.S. senator representing Wisconsin between 1993-2011, cast the only vote against the Patriot Act. It was a courageous stand in 2001. He now advocates for strengthening the judiciary’s role in counterterrorism efforts and limiting the broad powers invested in the surveillance apparatus to monitor U.S. civilians. But to some extent he doesn’t go far enough.

The courts will be key to restraining “the surveillance state.” But the world is also a much different place than two decades ago. Even while citizens and media personalities push back against government snooping – everyday Americans (largely) accept some form of corporate surveillance.

Government surveillance is now intertwined with Big Tech. Amazon, Palantir and Chainalysis are just a few examples of private companies that sign big-ticket contracts with government agencies to fork over individual’s information.

See also: How FinCEN Became a Honeypot for Sensitive Personal Data

Tiffany C. Li, a visiting professor at Boston University School of Law and a fellow at Yale Law School’s Information Society Project, advocated in an MSNBC column for a federal privacy law, bans on corporations working with exporting data and new norms around sharing.

I’d add to that list: Individuals and organizations should be investing in the tools that guarantee privacy at a foundational level. People should trial new technologies and take greater responsibility for their personal information.

There’s no reason to trust surveillance agencies or mega companies to do the right thing. And legislative and judiciary efforts to limit the control of the public and private “surveillance apparatus” have largely been hamstrung. The right tools exist, many are coming online, and crypto-funded research is making it possible – though they should also be approached with skepticism.