Such a shift may be happening at the level of rhetoric. But if we focus on what Congress is doing and where the politicians are, I’m not sure there is evidence of a real shift.
The key is that the current debate is about bulk telephony metadata collection, a subject that was not even on the radar screen during the post-9/11 debates over the Patriot Act. The Patriot Act was a big law that had dozens of different sections. But none of those sections involved bulk collection, which was unknown to the public and most (all?) legislators back then. Instead, most of the Patriot Act’s surveillance provisions were actually pretty narrow in what the text authorized. Despite the rhetoric to the contrary, which wrongly portrayed the Patriot Act as the end of all privacy, most of what was actually in the Patriot Act was pretty modest and non-controversial. From the perspective of the public debate, bulk collection of telephony metadata wasn’t on the radar screen.
The merits of bulk collection of telephony metadata entered the debate much later. In 2013, the first Snowden disclosures revealed that the Foreign Intelligence Surveillance Court (FISC) had secretly approved collection of bulk telephony metadata. As we learned, the FISC had used one section of the Patriot Act, Section 215, as the legal justification for that secret decision. But as the Second Circuit recognized just last month, that interpretation was based on a serious misreading of the Patriot Act language.
In short, the Patriot Act didn’t authorize bulk surveillance; the FISC did, based on a major misreading of the Patriot Act. So while the debate over bulk collection is an important debate, Congress’s cutting back the bulk telephony metadata program is not a new approach to the old debate over the Patriot Act. Instead, it’s an approach to a new debate about a program that was not on the radar screen when the Patriot Act was debated. It’s a new question, not an old one. As a result, there is no conflict involved in voting for the Patriot Act in 2001 and against bulk collection of telephony metadata in 2015.
None of this questions the significance of what Congress is doing. And as I said, perhaps the rhetoric is different. But I’m not sure it’s accurate to see Congress’s approach to telephony metadata as revealing a major change in direction from Congress’s debate over the Patriot Act after 9/11.