During the last weekend in May, Kentucky Senator Rand Paul did something that is not easy to do – he managed to anger most Republicans and Democrats, the Senate Majority Leader (who is also the senior senator from Kentucky), and the President of the United States. That’s quite an accomplishment. So, what was this political food fight all about? Only one of the most important issues of the age.
The cause of the conflict was the imminent expiration of the USA Patriot Act, in particular the provisions of the Patriot Act that permit the Government to vacuum up without a warrant all of the “metadata” about your landline calls, cell phone calls, and email communications. The metadata includes who you contacted, when you contacted them, and for how long. It does not include the content of communications. Ed Snowden revealed that the Government has been “Hoovering up” all of this information, from all of us, for years.
Senator Paul opposes such warrantless bulk data collection as akin to the “general warrants” used by the British to search the homes of colonists before the American Revolution. He wants Congress to re-think completely what he views as blatantly unconstitutional provisions that were enacted in the immediate aftermath of 9/11, when the nation was in a panicked state. In his view, Congress went well beyond constitutional limits and nearly 14 years of experience teaches that the benefit the nation has received in exchange for sacrificing this amount of personal privacy has not been worth the price. To date, the Government cannot identify a single crime it has thwarted, or a criminal apprehended, as a result of this bulk metadata collection effort.
Senator Paul was able to paralyze the Senate long enough for the Patriot Act to expire. Thus, for a 48-hour period in early June, the first such period in more than a decade, metadata on the calls you made or messages you sent was not spinning around on the hard drive of a server controlled by the FBI or the National Security Agency.
The temporary period of privacy was short-lived. On Tuesday, June 2, 2015, Congress enacted (and the President signed) the USA Freedom Act, which restored much of the Patriot Act, but requires phone companies and ISPs to collect and retain the metadata. The Government can now only obtain access to the metadata by petitioning a court to grant access. The new legislation is effective immediately. This was a defeat for Senator McConnell, who had advocated for a lengthy transition period.
The Freedom Act demonstrates one of the fundamental differences between the United States and Europe. Americans do not trust the Government to collect and use intensely personal information, but appear to be less bothered when such information is in private hands. Europe, by contrast, is completely hostile to private corporations when it comes to data collection and transfer, but Europeans appear to trust their governments with such information.
The Freedom Act is, unquestionably, a big step in the right direction, but it is hardly the solution. Ben Franklin said that those who would sacrifice liberty to obtain security deserve (and will get) neither. Since September 11, 2001, with the tacit consent of the Supreme Court, Americans have been forced to sacrifice a substantial amount of privacy (which is part of personal liberty) in exchange for a completely undemonstrated amount of additional security. This period has not been our Nation’s finest hour. The Patriot Act was similar to other unconstitutional measures that this country has undertaken when panicked in the name of security. The indiscriminate internment of 120,000 Japanese Americans during World War II is a classic and shameful example of America’s government being willing to sacrifice bedrock principles upon which our nation was founded in the name of security. The Patriot Act will forever be linked with the infamous Korematsu case for this reason.
There is an old saying that “in time of war the laws are silent.” Since 9/11, America has been permanently at war. Whether you ultimately agree with him or not, Senator Paul did the country a favor by forcing the nation to look itself in the mirror, if only for a moment, to ask if this sacrifice of liberty has really been worth it. Congress has now spoken, but the debate was important. May it never end.