STAFF NEWS & ANALYSIS
Sunset is Coming for NSA Dragnet
By Philippe Gastonne - April 30, 2015

Senate Republicans have launched the opening salvo in a battle over government surveillance powers, introducing a bill to preserve intact the National Security Agency's authority to store and search domestic telephone records…

Legal authority for the program, contained in Section 215 of the Patriot Act, is set to expire June 1. That has set off a race between lawmakers who want to preserve the government's surveillance powers and those who want to rein them in. – Los Angeles Times, April 22, 2015

The program described in this article is one of the less-intrusive dragnets Edward Snowden exposed, but it is nonetheless unacceptable.

Supposedly, it does not give the government the content of phone calls, only the "metadata" such as date, time, location, number dialed, length of call, etc. Collected and studied over time, this information can paint a surprisingly comprehensive picture of a citizen's life. That is why the NSA wants it, after all.

The advisory panel President Obama convened following the Snowden leaks advised him to end this program. Panel members thought the program's intelligence value did not justify its expense or its harm to civil liberties.

Obama rejected their advice – as well as almost everything else his own handpicked experts suggested. Now Senate leaders appear intent on doing likewise, but this time they have a problem. Authority for the program will automatically expire on June 1.

Of course, the program could survive without this particular legal basis. Government lawyers will find a provision in some other law, or claim the president has inherent authority under an executive order. It's also possible NSA has found some other technical means to acquire the same information.

Perhaps the bigger lesson here is that laws don't have to be permanent. Someone had the wisdom to think, "Hey, maybe we should take another look at this in a few years" and give parts of the Patriot Act an expiration date. Congress renewed them once, in 2011, but may not do so this time.

Imagine what could happen if Congress did this with every new law. State power grows slowly but surely as law enforcement agencies find novel ways to apply criminal laws.

Authorities charged the Boston Marathon bombing suspect, for instance, with building "weapons of mass destruction" from ordinary pressure cookers. Did Congress really intend the statute to encompass common kitchen implements? Of course not, but police can now use it that way. Soon they will move on to the bathroom and compare fingernail clippers to nuclear weapons.

This madness might end, or at least slow down, if Congress had to reconsider the laws it creates periodically. Likewise, the bureaucracy might be more reluctant to push the envelope as it does now.

The odds of Congress actually doing this very often are low. Since we're dreaming, though, let's dream of a grand idea. Imagine "The Decriminalization of Everything Act."

The law would be simple. It would say criminal penalties in all federal statutes disappear on a set date in the future – say five years from now – unless re-authorized by Congress first. This would give the president time to justify truly important laws. All the other accumulated legal underbrush would simply die away.

Will it happen? No, of course not. Leviathan doesn't give up so easily, but the thought exercise is instructive. Maybe Rand Paul can add it to his platform. Stranger things have happened.

Posted in STAFF NEWS & ANALYSIS
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