December 9, 2015
Presidential candidate Jeb Bush called for the restoration of Section 215 of the PATRIOT Act "I think we need to restore the metadata program, which was part of the Patriot Act… I think that was a useful tool to keep us safe and also to protect civil liberties.” Not to be outdone Sen. Marco Rubio (R-Fla.) slammed rival presidential candidate Sen. Ted Cruz (R-Texas) for supporting the USA FREEDOM Act, which Rubio argues “leaves Americans vulnerable.”
This in spite of the fact that both the Director of National Intelligence, James Clapper and Attorney General Loretta Lynch penned a joint letter endorsing the USA Freedom Act explaining “We believe that it is a reasonable compromise that preserves vital national security authorities, enhances privacy and civil liberties and codifies requirements for increased transparency.”
USA FREEDOM is not without its flaws, but its drafters aimed to strike balances between national-security concerns and real issues centering on government overreach and intrusiveness. Even the author of the PATRIOT Act, Rep. Jim Sensenbrenner (R-Wis.) recognized that Section 215 went too far and was ineffective which is why he penned the USA FREEDOM Act to curtail an obvious abuse of the intelligence community. Worse, it’s indisputable that the metadata program of Section 215 was never successful in disrupting a terrorist plot.
Sensenbrenner hasn’t changed his tune, despite the attacks. Instead he has continued to call for a balanced approach to the serious national security threats facing us, blaming fellow Republicans for hyperbole saying, “these horrific actions are no excuse for the knee-jerk reactions, political platitudes, and fear mongering we've been experiencing from some of my colleagues in its aftermath.”
Efforts to undermine the USA FREEDOM reforms shouldn’t be taken seriously. The metadata program, which is domestic, would never been used to ensnare a plot in Europe. Additionally, we know for a fact that these terrorists were already under surveillance by European intelligence authorities but steps were not taken to actually apprehend them.
This is a scenario we in America understand. Whether it was the 9/11 hijackers or the Boston Marathon bombers, there have been times when a weak link in the chain between intelligence community surveillance and law enforcement halted efforts to catch the bad guys. Instead of creating a bigger haystack to find the needle, but following Constitutional methods to catch those who seek ways to carry out terrorism. This year’s surveillance reforms did just that.
Instead of waiting for facts from the French-led investigation Senate Intelligence Committee Chairman, Richard Burr (R-N.C.) jumped to the conclusion telling the press “It is likely that end-to-end encryption was used to communicate between those individuals in Belgium, in France, and in Syria.” This notwithstanding facts that French authorities found unencrypted SMS text messages between the perpetrators. (It’s not even clear yet that there’s a Syrian connection to the attacks.)
Over the past few months there has been a revamped effort to curtail encryption. This debate was highlighted by FBI Director James Comey’s hearing in July where he called for a “golden key” that will enable the government to access encrypted information. While at the time his plea did not move the needle for legislative action, in the aftermath of Paris momentum is stirring to enable government entities to have backdoor access into encrypted communication.
The rationale used by national security hawks is that terrorists could potentially encrypt their messages making it impossible for monitoring. While it is possible that terrorists could use encrypted messages, it is a benefit that everyday Americans also enjoy in every facet of their lives. Online banking, establishing a secure Internet connection, purchasing a product on Amazon, or even missionaries helping religious minorities in a far-off nation are all enabled because of strong encryption. Opening a backdoor wouldn’t just help the intelligence community but would also expose users to vulnerabilities from hackers and other entities wishing to do harm. Every right we have is a right that bad guys might use against us, but that’s not an argument for security “backdoors.” And when truly secure encryption is outlawed, only outlaws will have truly secure communications. That’s a crazy outcome.
The old adage that a good politician never lets a crisis go to waste might raise your profile but it also makes for terrible policy. Instead of undermining Internet security and the privacy of Americans policymakers should work with tech and privacy experts to discern the right, balanced approach to handling of these delicate issues.
Leamer is outreach manager and a senior policy analyst at the R Street Institute, a free-market think tank.
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