The PATRIOT Act: Last Refuge of Scoundrels

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“Patriotism,” as Samuel Johnson famously said, “is the last refuge of a scoundrel.”  In that sense, perhaps the USA PATRIOT Act is appropriately named after all.

In the immediate aftermath of 9/11, most people (though not everyone) agreed that the government should be given additional investigative powers to reduce the risk of more terrorist attacks.  The fact that perfectly good intelligence was already available and ignored before 9/11 was considered water under the bridge.  The attacks signaled a new era in national defense.

Electronic communications bore the brunt of government complaints that the enemy had outpaced the government in an information arms race, and not surprisingly some of the most contentious features of the PATRIOT Act involved provisions to expand government powers of surveillance, information collection, and secrecy:

  • The use of wiretaps and other electronic collection methods was largely stripped of judicial oversight, especially with regard to foreign surveillance.
  • The range of information that could be collected without probable cause (including phone, financial and other records) was expanded.
  • The rampant misuse of National Security Letters ensured that the targets of information demands (including banks and communications and Internet providers) would be gagged from revealing just how extensively the government was using its new powers.

As I say in Law Three of The Laws of Disruption (“Social Contracts in Digital Life”), however, the PATRIOT Act’s expansion of surveillance powers didn’t just spring out of the national trauma of 9/11.  In fact, it was just a new act in a long-playing drama between investigators and civil rights activists.

Since at least the invention of the telephone, state and federal law enforcement agencies have complained about the unintended consequences of information technology’s accelerating pace of disruption.  Lawmakers and courts have struggled to strike the balance between the free flow of information as both an economic and personal imperative against the ability of government to protect its citizens from criminal activities.

The PATRIOT Act gave investigators their golden opportunity to leapfrog the competition.  Nearly every wish on the FBI’s Christmas List was granted, including powers that had been wisely refused for decades.  Both the First and Fourth Amendments have been severely battered, as some courts and even the FBI have acknowledged.  But no one wants to give up their presents.

In 2005, when some of the more dubious provisions came up for renewal, the Bush Administration lobbied hard for and won an unmodified PATRIOT Act.  As  the Cato Institute’s Julian Sanchez points out, the Obama Administration and key members of Congress including leading Democrats are now the ones singing the PATRIOT Act’s praises.  Hopes of real reform in this latest renewal process are fading fast.

To me the most dangerous aspect of anti-terror laws passed in the last decade has been the secrecy with which governments can now operate.  Meaningful judicial review of search and seizure has been cut out, gag orders have been abused, and Congress regularly tells us that if only we knew what they knew from secret briefings we’d understand why all of this other secrecy is so important.

Governments working in secret are working against the Law of Disruption.  Information wants to get out, and sooner or later it does.  That’s when we see the wisdom of the Founding Fathers in building in checks-and-balances to reduce the risk of overreaching and ultimately tyranny.

Crippling those limits, as we have done over the last decade, may or may not have made us much safer.  It has certainly made us less free.

Whether the costs outweigh the benefits is hard to say when both sets of data are being suppressed.