22 years ago – on Oct 26, 2001 – the Patriot Act was signed into law. As John Whitehead wrote, “we’re still grappling with the blowback that arises from allowing one’s freedoms to be eviscerated in exchange for the phantom promise of security.”
It’s hard to think about it without being reminded of Benjamin Franklin’s now-famous quote, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor safety.”
Rushed through Congress just 45 days after the 9/11 attacks, it was passed in an extreme state of fear. As many leading founders warned, this almost always has dangerous results for liberty.
James Madison put it this way in a 1798 letter to Thomas Jefferson:
“Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions agst. danger real or pretended from abroad.”
That’s exactly what we got with the Patriot Act.
Whitehead noted that it “drove a stake through the heart of the Bill of Rights.”
Here’s just a little of what we got – mass warrantless surveillance – in direct violation of the plain wording of the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
- Expanded warrantless access to electronic communications
- Secret “sneak and peak” searches
- Removal of privacy protections to allow more data sharing
- More funding for federal law enforcement agencies
- Warrantless financial surveillance through AML/KYC – along with Suspicious Activity Reporting (SAR) that sets the stage to kick people out of the financial and banking system
- Warrantless access to medical records, school records and pretty much any personal record about you – including records of your internet searches too.
But wait, there’s more!
Whitehead notes that “the Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience are now considered potential terrorist acts”
16 provisions in the original Act were set to expire due to sunset clauses, but in early 2006, Congress criminally made 14 of them permanent, to go along with the vast majority of the Act which was permanent from day one.
A few sections did expire, including the most-known one, Section 215 – business records program. At first glance, it sure would appear that this expiration meant that this part of program was ended.
But.
NSA doesn’t like giving up powers they want to have. And it’s not uncommon for the organization once known as “No Such Agency” to have a backup, or two. That is, if it appears that a court or Congress might get rid of one authority to do what they want to do – they have another one ready and waiting to keep things rolling.
That brings us to EO12333. Former NSA technical director William Binney described it this way to ARS Technica:
This program was started at least back in 2001 and has expanded to between 80 and 100 tap points on the fiber optic lines in the lower 48 states. Most of these fiber optic tap points are not on the East or West coast. This means that the primary target of this collection is domestic… Most collection of US domestic communications and data is done under EO 12333, section 2.3 paragraph C in the Upstream program. They claim, near as I can tell, that all domestic collection is incidental. That’s, of course, the vast majority of data.”
There’s also FISA Section 702, covered in more detail in a Path to Liberty podcast here. The two publicly-known programs are “upstream” and “downstream” – which were formerly known as PRISM.
Under Section 702, the government ostensibly targets only non-U.S. “targets” but is also allowed to sweep up data on Americans as long as it’s only “incidental.” That ends up being a pretty huge amount of data. EFF describes this as intentional:
“But let’s be clear. The fact that Section 702 surveillance regularly results in the collection and search of innocent Americans’ communications is an intended and inherent part of the system.”
But wait. There’s still more!
As a follow up to expand these surveillance powers, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004. This led, immediately or soon after – to even more of what we live under today:
- Information sharing environment (ISE)
- Fusion centers (created in homeland security act of 2002), but expanded through ISE in 2004 and its amendments in 2007
- Expanded TSA screening process
- REAL ID act of 2005
- Required DHS to implement biometrics at airports – like facial recognition surveillance
- National Counterterrorism center (NCTC), which keeps a massive database that serves as the basis of the TSA’s “no-fly” list.
The Founders understood the dangers of sacrificing freedom for security. As John Adams wrote in 1775, “Fear is the foundation of most governments.”
I’d just remove the word “most” there.
As long as people live in fear – and look to the largest government in history to “protect” them, things will keep getting worse.
The truth is – there is no “liberty vs safety” debate. We can only be truly safe when we’re free.
As Thomas Paine put it, “The strength and powers of despotism consist wholly in the fear of resisting it.”
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