Friday, May 01, 2015

Revising the Patriot Act doesn't matter much when there is a culture of impunity

Color me skeptical:
Under the bipartisan bills in the House and Senate, the Patriot Act would be changed to prohibit bulk collection, and sweeps that had operated under the guise of so-called National Security Letters issued by the F.B.I. would end. The data would instead be stored by the phone companies themselves, and could be accessed by intelligence agencies only after approval of the secret Foreign Intelligence Surveillance Act court.
Bulk surveillance and warrantless wiretapping was illegal even after the Patriot Act was passed and the NSA did it anyway. When the illegal wireless wiretapping program was revealed to the public in 2005, there was a legal effort to hold government officials responsible for the illegal program but that failed because courts would not give anyone standing to sue. When public interest groups opposed to the program finally had some success by suing the telecoms that participated in the illegal programs, Congress passed the 2008 FISA Amendments that gave telecoms retroactive immunity for their illegal conduct. Even though those programs were clearly illegal prior to the amendment's passage, the NSA and the officials who authorized the illegal conduct never suffered any legal consequences for their actions.

So while I guess that this amendment to the Patriot Act is better than not having this amendment, I do not believe it will do anything to change the NSA's behavior. Part of our problem is that the post-9/11 legal regime allows all sorts of abuses in the name of national security. But our bigger problem is that even when the powers that be violate the legal limitations on their surveillance powers, there are no consequences.