The Patriot Act Was Controversial Long Before Edward Snowden

The Obama administration has launched an all-out lobbying blitz over the past two weeks to prevent the expiration, now just days away, of surveillance authorities it says are vital to preventing terrorist attacks.

In pressuring the Senate to end its standoff over the Patriot Act, officials claim that a spate of the law's "noncontroversial" powers are caught in the crossfire of a debate over the National Security Agency's phone dragnet, exposed publicly by former intelligence contractor Edward Snowden two years ago.

But such rhetoric—espoused by President Obama, Attorney General Loretta Lynch, FBI Director James Comey, and other senior administration officials—belies historic opposition to the broader substance of the Patriot Act from civil libertarians and members of both political parties that began long before the Snowden files first emerged.

It also is emblematic of the uneasy alliance forged between the administration and many privacy groups who desire the same resolution to the Senate standoff—passage of reform-minded legislation known as the USA Freedom Act—but for diametrically opposed reasons. While the White House likely views the reform package as a one-and-done deal intended to quell domestic-surveillance concerns, many privacy advocates see it as the best, most realistic shot at Patriot Act reform, and hope it leads to further legislation down the road.

"It's not at all the case that the other provisions are uncontroversial," said Liza Goitein, the codirector of the Liberty and National Security Program at the Brennan Center for Justice, of the Patriot Act. "The notion that if we end bulk collection of American phone records that all is well … I don't think any of us should have that false comfort."

The Patriot Act was quickly and easily passed in the weeks after the Sept. 11, 2001 terrorist attacks, in order to expand intelligence agencies' counterterrorism abilities. Three sections involving surveillance were made to 

sunset every few years, in order to force Congress to periodically revisit them to ensure civil-liberties and privacy protections were sufficient. They're due to lapse on June 1.

By far the most controversial of them is Section 215, which allows government investigators to seize "any tangible things" deemed relevant to an ongoing terrorism investigation. Its loose standard of relevancy is what the NSA uses to justify its bulk vacuuming of phone records, but it also is what FBI investigators use to more easily seize so-called "business records," such as financial or library records.

The expanded search authorities granted under Section 215 are what prompted 2004 Democratic National Convention keynote speaker Barack Obama to say, "We worship an awesome God in the blue states, and we don't like federal agents poking around our libraries in the red states."

Critics contend that neither the NSA phone dragnet nor the rest of Section 215 help national security. That opinion was buoyed just last week with the release of a Justice Department inspector general report that found that the FBI could "not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders."

The two other provisions of the Patriot Act that will expire on June 1 absent congressional action are the so-called "roving wiretap" authority, which allows investigators to surveil an individual suspected of terrorist activity across multiple devices rather than requiring approval to snoop on each device, and the "lone wolf" authority, which allows surveillance on suspects who don't have confirmed ties to foreign terrorist groups. The lone-wolf provision has never actually been used, but the FBI says it is an important tool to keep at the ready.

Roving wiretaps under the Patriot Act have drawn scorn from privacy advocates who liken them to "John Doe" warrants because they require neither a name nor a specific device to be known, only a "specific" description of a target. And lone-wolf has been decried for making it more acceptable to turn foreign intelligence-gathering inward.

Congress nearly allowed all three surveillance authorities to expire four years ago when they were up for their last renewal—two full years before the NSA program was revealed. As is the case today, Sen. Rand Paul held up the process due to concerns that the provisions violated constitutional privacy rights, and a four-year extension was signed by President Obama just minutes before the deadline.

During that last vote to extend the Patriot Act, Sen. Dick Durbin acknowledged the pre-Snowden controversies surrounding the law, noting that he had voted for it a decade earlier "while ground zero was still burning," according to the Associated Press. But the Illinois Democrat said he "soon realized it gave too much power to government without enough judicial and congressional oversight."

Months before the 2011 vote, a Pew Research Center poll found that 34 percent of Americans believed the Patriot Act "goes too far and poses a threat to civil liberties."

Four years ago Congress extended the authorities absent changes. Now, the Obama administration is whipping heavily for the Senate to pass the Freedom Act, which would extend the expiring provisions but effectively end the NSA's bulk collection program, in addition to ushering in a host of other transparency and oversight reforms.

Virtually no privacy group thinks the Freedom Act, with its unchanged extensions and continuation of roving-wiretap and lone-wolf, does enough, and the administration would be hard-pressed to find any that agree with the assertion that the Patriot Act is noncontroversial. But the politics of the moment often create strange bedfellows.

"The logic or the understanding of where both the groups and the administration are is really very much a function of the deadline," said Lee Tien, senior staff attorney with the Electronic Frontier Foundation. "There is a real question about how much calcium there is in the congressional spine."

The Freedom Act does offer some affirmative reforms you can't obtain simply through an expiration, said Goitein of the Brennan Center, such as creating a more adversarial structure within the Foreign Intelligence Surveillance Court. There are many reasons some privacy advocates are urging its passage—but the notion that other parts of the Patriot Act are noncontroversial is not one of them, she said.

"This bill is an exercise in triage," Goitein said. "It's taking on the one program, the one sort of abuse of authority that Edward Snowden has revealed that has been most controversial and most problematic to Americans. But we definitely need comprehensive surveillance reform."