Before Edward Snowden leaked his trove of National Security Agency documents, it was as though we were wandering down a dark tunnel, eyes fixed on iPhones. The Snowden documents forced us to look up. By the blue glow of LCD screens, we saw we had stumbled into no tunnel at all—we had walked blindly into the insatiable belly of a hydra-headed surveillance beast. Two years later, we see the data-hungry monster for what it is, but have not yet disentangled ourselves from its innards.
It's hard enough to come to terms with our own unwitting complicity in this feeding—that our reliance on devices to carry out our networked lives made us ripe subjects for NSA data amassing. It would be worse though, to knowingly walk into those jaws again. This is what is at stake as key sections of the Patriot Act—the legislation that currently offers a pretext for NSA data hoarding—come up for renewal or expiration at the end of the month. If the provision enabling mass data collection is renewed, Congress will not only allow the national security monster to continue its once-concealed feasting, it will effectively lay out a picnic in broad daylight.
The key Patriot Act provision, section 215, is the legal edifice on which the government has been leaning to defend collecting the call records of millions of Americans. The legislation does not specifically greenlight data hoarding, it simply authorizes the collection of data deemed "relevant" to government investigations. But as Alex Abdo and Jameel Jaffer of the ACLU noted, the government's "collect it all" national security mindset is premised on the idea that any and all communications data could, at some point, be relevant. The legal demand for relevance inscribed into provision 215 collapses into everything, and therefore nothing.
In a refreshing moment of legal lucidity, a New York appeals court last week took to task the government's interpretation that "relevant" equals "everything" when it comes to data collection. The court ruled that the NSA's call metadata records collecting was illegal in its contravention of Americans' privacy expectations. The legal precedent could also apply to any of the government's other unbounded data hoarding programs. “The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” the judges wrote in their 97-page ruling.
The court ruled the data collection program to be illegal, but did not order the NSA to end it. Which means all eyes are now on Congress. Some lawmakers, like the Republican Senate Majority Leader Mitch McConnell, want the Patriot Act renewed in full in its 2001 form—215 and all. It's not likely, the votes for total renewal are lacking, and Sen. Rand Paul has promised to filibuster any attempt to push the provision through untouched; as is the Kentucky senator's stage-grabbing wont. But it's not clear that the alternative legislation on the table, the equally preposterously named USA Freedom Act, which would end the call data collection program to an extent, has enough votes to go through. So section 215 may just expire without replacement, and the window cracked open by its expiration for bringing in tighter controls over government surveillance will close.
We can be sure that even if the Patriot Act simply expires, the national security state will find another legal framework to justify its behaviors. 'Twas thus since 9/11—the government has proved itself talented at expanding the meaning of words beyond reason. "Imminent threat," "enemy combatant," "terrorist"—all terms lexicographically massaged into new meaning in these paranoid years. The fact that a federal court even recognized the warped semantics in the government's interpretation of "relevant" data is unusual.
Informed pessimism leads me to believe, however, that one such ruling will not undermine the fierce ideology that seeks to treat every person as a potential suspect. Especially when such a worldview can point to recent "lone wolf" attacks, like the shooting in Garland, Texas, last week, as evidence that terror can spring from anywhere. Little matter that one of the shooter's inclusion on an FBI watchlist did not prevent the attack. A case like this should raise a challenge to the assumption that surveillance and security are one; instead, the shooting is used as grounds for more ubiquitous surveillance.
To be sure, though, the proposed USA Freedom Act would not put an end to mass surveillance. Rather it would shift the hands in which data collections are held — by a third party, instead of the government directly. But it would take some disregard of recent history to think government access to this information would be tightly, ethically controlled, or based on transparent and broadly agreed upon motives. Moving our data elsewhere in the corporate-government surveillance nexus does not render us unsurveilled.
So while it would certainly be troubling if the Patriot Act were renewed in its current form—Congress can't pretend it doesn't know what it’s really voting through this time—the act's expiration, or replacement with the weakly reformed USA Freedom Act would not signify Congress clamping down on national security excesses. Congress will not starve the drooling Nat Sec monster.
We must make collective efforts to render ourselves less palatable as data meals. A smattering of individuals using better privacy practices, for example, will not slow the data collection metabolism. But if we are all as encrypted and protected as possible, our data masses will come in harder shells, that may chip the teeth and and clog the digestion of the chomping surveillance beast.