The United States is better protected from terrorism in our homeland because of the decisive, joint efforts taken by President Bush and Congress shortly after the September 11th attacks. A cornerstone of that urgent response was passage of the USA PATRIOT Act, which has helped improve coordination between our intelligence agencies, fortified the security of our borders, and enhanced the ability of law enforcement to conduct investigations around terrorist activities. Yet, as the law has aged and technology has advanced, the time for Congress to update the PATRIOT Act has come.
One area of the PATRIOT Act that is in need of major reform is Section 215, which the government has used as its authority to conduct bulk collection of Americans’ communications records. For many, the call to end the bulk collection program is about restoring a balance between privacy and national security interests. There are unquestionably legitimate privacy and Constitutional concerns with the program, which sweeps up the phone records of millions of Americans with no connection to a crime or terrorism. The government can and should do better than this overbroad dragnet.
When I look at the bulk collection program, I believe the genuine reason for reform is about more than finding balance. It’s about returning to the timeless principle that surveillance and intelligence gathering should be targeted and predicated on suspicion of a crime or intent to commit a crime. Bulk collection of any type of information is inherently untargeted and it is impossible to suggest that more than the smallest fraction of those records collected could be related to terrorist activity. Unfortunately, the government wrongly interprets the entire nation’s phone records as “relevant” to their national security investigations. This is like collecting all of the water in the ocean when all you really need is one bucket.
When my former colleague in the House of Representatives, Jim Sensenbrenner, led the drafting of the PATRIOT Act in 2001, as he has stated, he never intended for it to be used as a justification for mass domestic surveillance. Rather, he sought to enhance the ability of intelligence and law enforcement agencies to conduct coordinated investigations based on suspected terrorist activities. The fulcrum for advancing any investigation is in fact whether there is a predicate for that investigation. The government’s current interpretation of Section 215 of the PATRIOT Act skirts the requirement of a predicate.
What Congress should do is restore the concept that the collection of any communication record must be focused on specific targets. Instead of nationalizing the collection of phone records, our intelligence agencies should obtain only the records they need for a specific investigation. If in the course of a legal investigation they do collect information on individuals not relevant to the case, those records should be disposed of promptly, rather than stored needlessly for a hypothetical future investigation. Right now, a bipartisan bill that would end untargeted bulk collection, the USA FREEDOM Act, has passed the House, and is the only viable option left for the Senate. With the support of members of the intelligence community, civil liberties advocates, and the President, there is no reason a strong bill should not advance and become law.
There are some who would rather see the PATRIOT Act repealed or its authorities allowed to expire. Section 215 is, in fact, scheduled to expire on June 1, 2015, but allowing it to do so would be irresponsible and ineffective. It’s irresponsible because there are legitimate reasons to conduct targeted surveillance of communications records and at times those investigations need to be conducted swiftly. It’s ineffective because allowing Section 215 to expire would not end the government’s ability to continue bulk collection under other surveillance laws. Thankfully, Congress seems inclined to move down the path of reform.
Ultimately, I do believe that the laws and authorities established under the PATRIOT Act make Americans safer and more secure. However, just as we have upgraded from flip phones to smartphones, from desktops to tablets, and now constantly generate reams of data revealing our lives in minute detail, we must update our surveillance laws to better protect privacy. As technology continues to advance, bulk collection and mass surveillance have become far easier for government to accomplish. But technology also makes it increasingly possible to identify targets and hone in on narrow swaths of information. If we reform our national security surveillance laws to return to the basic premise that information should only be collected on a targeted basis as part of a defined investigation, we will be able to reap the benefits of technology, while maintaining the appropriate restraints on surveillance.
Tom Ridge, Chairman of Ridge Global, served as the 43rd governor of Pennsylvania and was the first Secretary of the U.S. Department of Homeland Security.