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Sen. Rand Paul (R-KY) is vowing to force expiration of three controversial provisions of the Patriot Act this evening. Advocates of broad government spying powers are portraying this as a crisis. For example, Sen. Harry Reid (D-NV), the leader of Senate Democrats, sent out an email statement yesterday arguing that allowing the Patriot Act's authority to lapse for a few days could have "potentially devastating consequences for the American people." An anonymous White House official told the New York Times that the expiration of Patriot Act provisions amounts to "playing national security Russian roulette."
This is ridiculous. Whatever the merits of these Patriot Act provisions, having them lapse for a few days is not an emergency. The government will have plenty of options for spying on terrorists after they expire.
The expiration of Patriot Act powers will mean more paperwork
The law provides government with a lot of different ways to spy on terrorism suspects. In some cases, the methods of the Patriot Act are the most efficient and convenient way for the government to do it. But as the American Civil Liberties Union's Jameel Jaffer points out, they are far from the only options. Consider Section 215, the legal basis for the government's controversial (and possibly illegal) bulk collection of Americans' phone records, for example:
The sunset of Section 215 wouldn't affect the government's ability to conduct targeted investigations of terrorist threats. This is because the government has many other tools that allow it to collect the same kinds of things that it can collect under Section 215. It can use administrative subpoenas or grand jury subpoenas. It can use pen registers. It can use national security letters. It can use orders served under the Electronic Communications Privacy Act. If Section 215 sunsets, it can use the provision that Section 215 amended, which will allow it to collect business records of hotels, motels, car and truck rental agencies, and storage rental facilities.
To be sure, the expiration of Section 215 may create extra work for government lawyers, since they'll have to do paperwork for every individual terrorism case rather than being able to just scoop up every American's phone records with a handful of requests. But NSA lawyers burning the midnight oil for a few days is not an emergency.
The government is losing a power it's reportedly never used
A similar point applies to the other two Patriot Act provisions that are sunsetting on Sunday night. One is a "roving wiretap" rule that allows the government file one application to spy on multiple phone lines owned by the same suspect. Again, that reduces the amount of paperwork the feds need to fill out. But it doesn't actually reduce the government's ability to spy on suspects once they've crossed their t's and dotted their i's.
The final expiring Patriot Act provision allows the government to ask the secretive FISA courts for warrants to spy on "lone wolf" terrorists that are not associated with any known government or terrorist group. Yet the expiration of this power doesn't mean the government will be powerless to spy on "lone wolves." The feds will still be able to use ordinary law enforcement warrants and other legal tools to spy on them. Oh, and according to ABC News, the government has never used these "lone wolf" spying powers.
So, at worst, Sunday's expiration of the Patriot Act provisions will mean government lawyers are forced to fill out extra paperwork in order to spy on suspected terrorists. Reasonable people can disagree about whether this extra paperwork creates be an unnecessary burden or whether it brings much-needed judicial oversight to government spying. But either way, it's not an emergency.
