It took a political protest — represented by the Patrick Henry of the anti-body-scanner movement, the gentleman who in 2010 exclaimed to a TSA agent, “Don’t touch my junk” — to persuade the Obama administration and Congress to reconsider. This year, the TSA removed the invasive technology from major airports and replaced it with more privacy-protective machines.
Yet we remain unnecessarily exposed. Repeatedly, our government has chosen technologies, policies and laws that reveal innocent information without making us demonstrably safer. The massive telephone and Internet surveillance programs disclosed last month are the most recent examples. But the tendency goes back at least as far as the USA Patriot Act, passed in the anxious weeks after Sept. 11, 2001, with only one dissenting vote in the Senate.
Defenders of the Patriot Act say it has prevented terrorism. But a better Patriot Act might have avoided national scandals over not only airport scanners and phone metadata but also wiretapping and library records. A better law could have dispensed with the “trust us” mentality and mitigated the erosion of trust in government. It could have put us in a better position to detect terrorism and other serious crimes without threatening privacy.
Here’s what some of the most controversial passages of the Patriot Act should have said from the start — and how they could be amended.
Section 215 and records searches
Before the Patriot Act, the government could conduct warrantless surveillance only to seize a limited set of records, such as business records, and only when the target was a suspected spy, terrorist or “agent of a foreign power.”
Section 215 broadened the exception to warrant requirements dramatically, allowing the government to seize from anyone “any tangible things” — that is, any data, including e-mails, financial records and travel itineraries — arguably relevant to a terrorism investigation, regardless of whether the target is a suspected terrorist.
Now, even Patriot Act sponsor Rep. Jim Sensenbrenner (R-Wis.) argues that Section 215 should be revised. As Sensenbrenner suggests, it should be amended to require a warrant, or “specific and articulable facts” giving reason to believe that someone is an “agent of a foreign power,” before the seizure of phone records or any other private data. That would avoid the hoovering of information and focus surveillance on suspicious targets.