The federal government used Section 215 of the PATRIOT Act to spy on us and track websites we visited in 2019 according to letters from the Office of the Director of National Intelligence that were made public last week, putting renewed attention on the unconstitutional law that expired earlier this year.
Following the 9/11 attacks, George W. Bush and a bipartisan Congress joined forces to launch a tyrannical assault against liberty in America in the name of safety. The fruit of their efforts was passage of the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” better known as the USA PATRIOT Act. This constitutionally questionable law is what gave the National Security Agency (NSA) sweeping authority to spy on every single American and collect their electronic records in addition to other metadata.
In 2013, Edward Snowden exposed government spying by the NSA under the PATRIOT Act, and that led to the eventual passage of the “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act” (USA FREEDOM Act) in 2015. This law was intended to bring an end to bulk collection of metadata by the NSA in addition to ending secret laws used by the “Foreign Intelligence Surveillance Act” (FISA) courts that allowed the NSA to monitor anyone . . . anytime . . . anywhere.
One of the “fixes” provided by the FREEDOM Act addressed errors in Section 215 of the PATRIOT Act. This section is where the NSA found its authority to gain access to “business records” and other “tangible things” deemed “relevant” to fighting terrorism. Using a broad interpretation of Section 215 of the PATRIOT Act is how the agency justified the abusive and unconstitutional spying revealed by Snowden.
Section 215 and other provisions of the PATRIOT Act were set to expire on December 15, 2019, but in one of Washington’s classic year-end budget band-aids to avoid a so-called government shutdown, a 90-day extension of the act was tucked inside a 2000-page omnibus loaded with spending priorities that broke nearly every promise Trump and the Republican Party made in 2016.
As the new March 15, 2020 deadline approached, Trump and the Republican Party put NSA spying back on the menu, and they renewed their commitment to make it permanent. Fortunately, their tyrannical effort failed, allowing Section 215 and other key parts of the PATRIOT Act to expire.
In an article on TheHill.com, we learn why this failure is not only fortunate, but also why we need to see the end of the PATRIOT Act.
Director of National Intelligence (DNI) John Ratcliffe, in a Nov. 6 letter in response to Sen. Ron Wyden (D-Ore.), wrote that Section 215 of the Patriot Act, which allows the FBI to covertly obtain court orders to collect any business records relevant to a national security, was not used to get internet search terms.
He later clarified that position in a Nov. 25 follow-up letter after being contacted by the Justice Department to note that the authority had been used once to collect logs showing which computers “in a specified foreign country” had visited “a single, identified U.S. web page” during 2019.
“The DNI’s amended letter raises all kinds of new questions, including whether, in this particular case, the government has taken steps to avoid collecting Americans’ web browsing information,” Wyden said in a statement to The Hill on Thursday.
“More generally, the DNI has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”
While the FBI declined to comment on whether the authority had been used to gather web browsing data and other similar information before 2019, a spokesman for the agency suggested that doing so would be entirely consistent with the agency’s interpretation of Section 215 of the PATRIOT Act:
“Section 215 has been an important tool used by the government to obtain this type of non-content information to combat cyber and other national security threats,” they said, referring to data about communications excluding the communications themselves.
“This type of non-content information can be obtained in a criminal investigation through the use of a grand jury subpoena and we see no reason to prohibit the acquisition of the same type of information under Section 215 when investigating a threat to national security.”
Even though Trumpist Ratcliffe claims that the federal government did not collect keywords for searches, the collection of such data is considered a violation of the Constitution by many civil rights groups.
“Our web-browsing records are windows into some of the most sensitive information about our lives — revealing everything from our political views to potential medical conditions,” Patrick Toomey, senior staff attorney with the ACLU’s National Security Project, said in a statement. “The FBI should not be collecting this information without a warrant.”
Sean Vitka, senior policy counsel at the progressive group Demand Progress, said that the same logic could be used to justify mass surveillance.
“If this is legal in their mind then a dragnet on a website is legal,” he told The Hill.
While the authority for the government to spy on us under the PATRIOT Act and collect this data remains inactive, lawmakers and privacy groups have raised concerns that the Trump administration may be using an earlier executive order to illegally surveil Americans. For example, Executive Order 12333, issued in 1981, has been used in the past to conduct operations without statutory authorization or congressional oversight.
Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) along with Reps. Pramila Jayapal (D-WA) and Warren Davidson (R-OH) sent letters to Attorney General William Barr and Ratcliffe earlier this year over potential misuse of 12333 authority. The lawmakers said they never received a response.
Based on Trump’s stated position in the summer of 2019, this is a valid concern:
Exclusive: The Trump administration has urged Congress to make permanent the expiring legal authority that empowers the National Security Agency to gain access to logs of Americans’ domestic communications. For now, it's set to expire in December. https://t.co/tRGGECS3gW
— The New York Times (@nytimes) August 15, 2019
On the subject of how the federal government is violating our constitutional rights under the PATRIOT Act, John Whitehead, founder of the Rutherford Institute, has written that “[it] violates at least six of the ten original amendments known as the Bill of Rights — the First, Fourth, Fifth, Sixth, Seventh and Eighth amendments — and possibly the Thirteenth and Fourteenth as well.”
If this latest revelation about federal government spying under the umbrella of the PATRIOT Act teaches us anything, it’s that politicians in both parties can manipulate and pervert seemingly clear legal standards and rules for the benefit of the state.
The PATRIOT Act is certain to be brought up again when the new Congress convenes. And with Joe Biden putting Obama’s liberty-killing band back together along with the damage done over the past four years by Trump’s Obama-lite approach to the issue, we need to be vigilant in our fight against its renewal if we want to see the end of the NSA and federal government spying.
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.