According to a new survey commissioned by the American Civil Liberties Union (ACLU), 60 percent of voters think "Congress should modify the Patriot Act to limit government surveillance and protect Americans' privacy." Just 34 percent thought "Congress should preserve the Patriot Act and make no changes because it has been effective in keeping America safe from terrorists and other threats to national security." By comparison, a January 2014 survey by the Pew Research Center found that 53 percent of adults opposed "the government's collection of telephone and internet data as part of anti-terrorism efforts," up from 47 percent in June 2013, shortly after the general public first became aware that the National Security Agency (NSA) was collecting everyone's phone records.
The ACLU, together with the Tea Party Patriots, is trying to capitalize on public opposition to such snooping with TV ads (below) airing in Iowa, New Hampshire, and Washington, D.C. The ads urge viewers to contact their legislators about reforming Section 215 of the PATRIOT Act, which the NSA claims authorizes its database. As the ad notes, a federal appeals court recently disagreed with the NSA, which raises the question of what would happen if Congress reauthorizes Section 215 unchanged, as Senate Majority Leader Mitch McConnell (R-Ky.) and other supporters of the metadata program want. If Section 215, which expires at the end of the month, does not allow the indiscriminate collection of phone records, that presumably would not change even if Congress fails to approve the reforms that the ACLU wants.
Like Rand Paul, I would prefer that Section 215, which lets the government obtain "any tangible thing" merely by certifying that it is "relevant" to a terrorism investigation, simply expire. Short of that, it seems to me that the new, watered-down version of the USA Freedom Act still represents an improvement, although I understand why some privacy activists disagree, especially in the wake of the 2nd Circuit's ruling.
But as I argued in my column last week, there is a deeper problem here: the Supreme Court's "third-party doctrine," which says the Fourth Amendment does not protect the privacy of information you share with other people. That dubious principle is the reason defenders of Section 215 say the provision is no big deal, likening it to subpoenas seeking personal records based on a similar showing—although, as the 2nd Circuit emphasized, those subpoenas never go as far as the secret court order that let the NSA collect all phone records, just in case some of them might one day prove to be relevant.
Judging from the ACLU survey, most Americans are troubled by the lack of protection for information held by third parties, which in the age of the Internet and cloud computing includes a tremendous amount of sensitive material. More than four-fifths of respondents said it was "concerning" that "the U.S. government is collecting your personal information"; that "the government uses information collected without a warrant for things other than stopping terrorist attacks"; and that "the government accesses any of your personal communications, information, or records you share with a company without a judge's permission based on evidence." A similar share of respondents (83 percent) said police and the FBI should have to get a "warrant issued by an independent judge for a valid reason" before looking at your "email and phone records."
Just to be clear: That is not currently the case. Because of the third-party doctrine, those records and all other remotely stored information get only as much protection as legislators decide to give it, which so far isn't much. It is not even clear under current federal law whether the government needs a warrant to read your email, which most people surely would consider private.