I find myself feeling ambivalent in the current debate about the Patriot Act and the data-collection activities of our national intelligence agencies. What is the right balance between privacy and surveillance, between reasonable individual agency and reasonable security?
Those are difficult questions, and I doubt that the answers lie at either extreme. Some people fear the government inordinately and believe that its data collection is either a deliberate power-grab or part of a long, slow march to erode our freedoms. Others fully trust the government not to abuse its power or they accept almost all intelligence measures deemed necessary by the state to ensure security. But probably, healthy, prudent intelligence protocols should fall somewhere between those two postures.
The original Patriot Act was passed on October 26, 2001, in the emotionally charged aftermath of 9/11. Probably, it could have used more refinement and more oversight provisions. It has been amended by legislation and the courts a number of times. Still, its 342 pages contain gray areas, loopholes and parts subject to interpretation (inevitably, like most complex laws).
The act enlarged the powers of the federal government to search, seize, detain and wiretap. It lowered the standards by which search warrants or wiretap orders are obtained, it narrowed the scope of what the intelligence agencies must disclose, and it broadened definitions of domestic terrorism. The act also made it easier for authorities to detain and indefinitely hold suspects, deny access to legal counsel, and harass or intimidate immigrants, citizens and businesses.
Prior to the Patriot Act, the Foreign Intelligence Surveillance Act (FISA) of 1978 was the primary arbiter of the legality of various intelligence activities. However, FISA was not enacted in response to threats from abroad, but in response to President Nixon’s abuse of federal intelligence resources to monitor and investigate American individuals and groups that were considered — by Nixon or the intelligence agencies — dangerous, unpatriotic or politically radical. Those groups included Vietnam War protesters, anti-nuke activists, environmental advocates, “longhairs” and mere political opponents.