Mass surveillance is becoming a punchline. John Kerry jokes with the press that it’s “so nice to put faces to the metadata.” Former National Security Agency chief Keith Alexander appears on John Oliver’s Last Week Tonight and cheerfully describes the NSA as “the only agency in government that really listens.” Making it humorous makes mass surveillance seem easy and friendly and a normal part of life. It helps us forget about real opportunities to roll it back. Of course the government is listening in on everyone. Why should we ever think otherwise?
But mass digital surveillance of Americans is a recent thing, not a way of life. It was legalized only in the panicky days after Sept. 11, under Section 215 of the Patriot Act. Like other provisions of what was intended to be “emergency” legislation, Congress built in a sunset, and for Section 215, that sunset is coming up on June 1. It could, and should, be allowed to expire.
Section 215, one of three authorities underlying mass surveillance, authorized many previously illegal practices. These included the dragnet collection of all U.S. residents’ phone metadata, which Edward Snowden revealed in 2013. Section 215 requires any person or entity to turn over “any tangible things,” so long as the FBI “specif[ies]” that the order is “for an authorized investigation … to protect against international terrorism or clandestine intelligence activities.”
This power is almost without limit. There’s no requirement that the person targeted has to be involved in criminal activity of any kind, which violates the Fourth Amendment of the Constitution. Despite the clear constitutional violation, the secretive Foreign Intelligence Surveillance Court has ruled that “the entire mass of collected metadata is relevant to investigating [international terrorist groups] and affiliated persons,” because the security services claim that they need to collect all metadata in order to discern patterns accurately. (In its decision, FISC cited a Section 215 ruling from 2010 whose title is wholly redacted.)
Before Congress calms down enough to let go of Section 215, there should be a real debate about mass surveillance’s documented tendency to lead to a more anxious and submissive citizenry. But even getting at what Section 215 is used for is harder than it should be right now, because the FBI is hiding a legally required report on that very topic.
Amid the post–Sept. 11 panic, members of Congress did put one requirement in place. The intelligence community claims, as part of its argument that it is under rigorous oversight, that every six months the attorney general is supposed to update Congress on how Section 215 is being used. In practice, in nearly 14 years there have been only two reports, issued by the Office of the Inspector General within the Department of Justice. The first report was released in 2007 and detailed how Section 215 orders had been used between 2002 and 2005. A second report, released in 2008, covered orders from 2006. Both reports redacted any mention of the phone metadata dragnet as a classified program. After that point, as far as we know, formal reporting ended.
During the Patriot Act renewal debate of 2011, Congress required the report covering 2007–2009 to be issued by March 31, 2013, so as to provide enough time for Congress to debate Section 215 adequately in advance of the sunset, which was then Dec. 31, 2013. (The sunset was later extended to this June.) That didn’t happen.
In 2014, the Office of the Inspector General broke the silence, but not to release the missing report. Instead, it issued an update on how the FBI was implementing recommendations relating to national security letters. On Christmas Eve 2014, the government released a newly declassified appendix to the 2008 report relating to the phone metadata dragnet. Apparently exasperated by FBI delays, the inspector general has just sent a classified version of the new report to the House and Senate intelligence committees, but the unclassified version remains firmly under “declassification review.” So the most recent information the public has on this is 9 years old, and a small subset of members of Congress who have read that classified briefing get to find out what they were doing as of 2009. That’s not accountability. It’s a farce. If the FBI wants to rootle through our communications like a truffle-smelling dog, it has to tell us more or less what it’s up to.
The FBI may have its own reasons for not making an unclassified version public. The missing report would be independent government-issued evidence that might corroborate the assertions of people who have been surveilled and who are litigating that surveillance on constitutional grounds. On Feb. 10, the Electronic Frontier Foundation’s long-running Jewel v. NSA case suffered an adverse ruling precisely because determining whether its plaintiffs actually had standing would require consideration of programs the judge considered to be state secrets—and which might not have been state secrets any more if the missing report had been released.
Surveillance, it seems, is like Santa Claus in Miracle on 34th Street: It can be deemed legally to exist only if the U.S. government says it does.
It may also not be accidental that it’s the rulings covering 2007–2009 that are missing. A Foreign Intelligence Surveillance Court ruling from that time authorizes a “pen register/trap and trace” dragnet that appears intended to cover Internet content on a mass basis, but until this report is made public, we won’t know much more than that bare fact.
The FBI, the NSA, and all of the agencies using Section 215–derived intelligence can only retain access to it if Congress believes that it’s being used for good purposes. But if they were really using the data only for good, why would they be fighting so hard to prevent us from knowing how they’re actually using it?
We know that Section 215 bulk collection is not useful for thwarting terrorist attacks, because an independent report by the president’s Privacy and Civil Liberties Oversight Board was unable to find a single instance where an attack had been thwarted using data derived in that way. In fact, the PCLOB recommended that the bulk collection program be shut down.
Section 215 doesn’t actually help catch would-be terrorists, but we can see its effects in our own behavior toward one another. Like our politicians, we make uneasy jokes about how we should watch what we say, about the government looking over our shoulders, about cameras and informers and eyes in the sky. Even though we may not in practice think that these agencies pay us any mind, mass surveillance still creates a chilling effect: We limit what we search for online and inhibit expression of controversial viewpoints. This more submissive mentality isn’t a side effect. As far as anyone is able to measure, it’s the main effect of mass surveillance. The effect of such programs is not primarily to thwart attacks by foreign terrorists on U.S. soil; it’s to discourage challenges to the security services’ authority over our lives here at home.
So let’s challenge that authority. Let’s find out just how far the security services have been reaching into our lives and let this unworthy “emergency” measure finally expire.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.