Monday, 1 June 2015

What the Patriot Act taught the US about fear

The United States “can still catch terrorists using the Constitution,” Kentucky Senator Rand Paul said this week after successfully blocking the government’s attempts to renew its authority to sweep the world’s telecommunications records in the hunt for terrorists.

Sen. Rand took umbrage to the renewal of the National Security Agency’s (NSA) vast powers of interception as part of the so-called US Patriot Act. The bill was introduced after the terrorist attacks of September 11, 2001 when then President George W. Bush was advised the US intelligence community’s capabilities were too constrained to prevent a repeat of the attacks.

NSA Fort Meade, Maryland
However, as the years have ticked by and 9/11 fades into history, the Patriot Act is considered too far reaching and intrusive by many Americans, especially since NSA technician Edward Snowden released stolen classified files detailing the extent of its digital interception programmes.

New Zealand’s own Government Communications Security Bureau (GCSB) is a close global partner of the NSA. The GCSB has benefitted from the expanded NSA powers and will receive significantly less signals intelligence data should the Patriot Act provisions entirely dry up.

Although US President Barack Obama allowed parts of the Patriot Act to expire this week, his inaction is somewhat offset by the potential USA Freedom Act as replacement. This bill is meant to end the bulk collection of US citizens' digital metadata, end the secret laws created by the Foreign Intelligence Surveillance Act (FISA) court and introduce a “Special Advocate” to represent the public in privacy matters.

It is unclear what the new surveillance laws will look like at this point, but the shutdown of the Bush-era powers is the most significant US intelligence reform in a decade.

Most of the public will probably never know how effective the US intelligence community has become in the years following 9/11. The community benefited from increased funds, helpful legislation and more people-power and further large-scale attacks never occurred. But exactly how much America’s spies are to thank for thwarting follow-on terrorism is largely guesswork.

Yet to discuss this debate correctly, an accurate understanding of the type of intelligence being gathered by the NSA – the phone calls and metadata – is central to both the parameters of the controversial collection and any consequences of limiting those efforts.

Since the Snowden leaks in 2013, the argument’s framework has distorted the details of exactly what the agency was doing. According to the NSA’s own secret files, the NSA legally captured some US citizens' phone records and metadata – described as data about who phoned whom, for how long and from where.

The agency was never authorised to intercept and store voice recordings or other content from US citizens' communication devices in bulk without a warrant issued by the FISA court. Collection against foreign individuals has not been subject to the same constraints relating to US citizens.

Collection of metadata was not considered a constitutional matter, as there was no reasonable expectation of privacy for those records. However, some unresolved legal questions now require rethinking for current circumstances.

Switching off the programmes might appear to be the best decision given the public’s reaction to the NSA’s programmes. Yet many polls suggest the majority of Americans support the NSA’s tracking of millions of phone records, saying investigating terrorism takes precedence over privacy.

This isolates the true dynamic of the NSA and Patriot Act debate. Ultimately all intelligence questions are about where the public wishes to balance security with its privacy. Given the fear engendered by the terror attacks of 2001, it was reasonable for the US government and public to dial-up the powers of its intelligence agencies as the nation prepared to defend itself.

Domestic US protection was paramount, but the government also sought an Authorisation of the Use of Military Force to take the fight to the enemy and away from the homeland. The United States has now been fighting a constitutionally legal war for almost 15 years. Both of these actions required lifting the bar of security.

Kentucky Senator Rand Paul
But increasing security has two outcomes, one immediate and one delayed. The immediate consequence is the narrowing of public privacy, especially in the digital age, as the government searched for terrorist communication needles inside the enormous haystack of completely innocuous data generated by US citizens.

It was inevitable the NSA would stumble upon private records while disrupting terror plans both inside and outside the United States. Legal constraints (albeit conducted in secret courts) were established to avoid many dangerous imbalances. The NSA became comparatively successful in self-policing compared to almost every other nation’s intelligence agencies.

The delayed consequence is the intelligence community’s incredible achievements over this period. The Patriot Act supplied it with much-needed capabilities to defend the nation. Of course, the agencies were not perfect and some threats still seeped through (many conducted by US citizens, which the NSA was not legally allowed to monitor), but the agencies were largely successful, perhaps leading to a false sense of security among the public.

But there will always come a time when the legal and moral bar balancing security and privacy requires recalibration.

Today, transnational and domestic terror threats are arguably more diverse and adaptable than ever before, yet the US public has blessedly forgotten its collective fear of the dark days following 9/11.

As a result, the NSA’s powers are now being trimmed, but this does not mean the country is safe. The United States can be sure it will be threatened again in the future, leading to another rebalancing of the bar away from privacy. But hopefully a few lessons have been learned.

The US is vulnerable no matter what it may otherwise think and the public discussion about balancing the twin values of privacy and security needs to be constant to avoid knee-jerk reactions in times of fear or peace. Trimming intelligence powers was inevitable, but cutting them off will only imperil the country’s safety by prioritising an illusory desire for privacy in a world that doesn’t care for it at all. Has the US public learned that lesson? One can only hope.

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