Congress should revive Americans’ privacy rights by allowing the controversial Section 215 of the Patriot Act to expire at the end of the month. Then it should take up legislation to broaden the protections of the Fourth Amendment’s guarantee against “unreasonable searches and seizures.”
As Sen. Rand Paul, R-Ky., and 1st District Rep. Mark Sanford, R-S.C., wrote on our Commentary page Thursday, Section 215 authorizes the government to obtain a secret court order to seize “tangible things” relevant to a foreign intelligence investigation, including business records such as bank account transactions and phone records.
Asserting that something is “relevant” to an investigation is a much more lax standard than that required by “probable cause to believe a crime has been committed,” the legal standard of investigations where a judge must issue a very specific subpoena to set aside the Fourth Amendment protection of privacy.
The National Security Agency’s seizure of all American land-line phone-call records was authorized by the secret Foreign Intelligence Surveillance Court (FISC) based on an interpretation of Section 215 that went well beyond anything contemplated by most federal lawmakers when they passed the Patriot Act less than seven weeks after 9/11.
Contrary to the claim by supporters of the NSA’s almost certainly unconstitutional power grab (with the shameful acquiescence of the FISC), the nation’s defenses against terrorism will not be dangerously undercut if Section 215 expires. Its government advocates have been unable to specify any case in which the bulk collection of telephone records has played a critical role in solving a terrorism case. And as Americans move from land lines to cell phones, the bulk collection program will become increasingly outdated and irrelevant.
The time to take a stand against the predictable next erosion of privacy rights in response to that trend is now, by letting Section 215 expire. As Sen. Paul and Rep. Sanford wrote, “Trusting unlimited power is not an American strength.”
To the contrary, it is a dangerous weakness.
But letting Section 215 expire will not change the law with respect to the unprotected nature of Americans’ business records, and that should be rectified. The Supreme Court ruled almost a generation ago that businesses that keep records on private bank accounts, phone calls and the like must surrender them to police on demand because such records are not covered by the Fourth Amendment. But those who use banks and make phone calls have no option but to allow the record keeping, and companies that keep the records rightly treat them as confidential.
The government should not be allowed to seize these records without a judge’s order.
And Congress should reverse the erosion of Americans’ constitutional protections against “unreasonable search and seizures.”