How much has Congress changed on surveillance?

|The Volokh Conspiracy |

A lot of commentary about Congress's approach to the Patriot Act is claiming a major shift since the post-9/11 debates. Here's Peter Baker in the New York Times:

Just one senator voted against the Patriot Act, calling it a violation of civil liberties when it passed in the frightening, angry days after the attacks of Sept. 11, 2001. Nearly 14 years later, 77 senators voted to advance a bill ratcheting back its expansive scope.

To libertarians and civil liberties advocates, the shift underscores an evolution in thinking about the risks and trade-offs of terrorism, a recognition that perhaps the country went too far out of fear and anxiety. To national security conservatives, it represents a dangerous national amnesia about the altogether real dangers still confronting the country.

And here's the same theme from the New York Times the day before:

The expiration of surveillance authority demonstrates a profound shift in American attitudes since the days after the Sept. 11, 2001, terrorist attacks, when national security was pre-eminent in both parties. Fourteen years after that attack, even as American conflicts continue abroad, a swell of privacy concerns stemming from both the vast expansion of communication systems and an increasing distrust of government's use of data has turned those concerns on their head.

(And today, too: "a remarkable reversal of national security policy formed after the Sept. 11, 2001, terrorist attacks.")

Such a shift may be happening at the level of rhetoric. But if we focus on what Congress is doing and where the politicians are, I'm not sure there is evidence of a real shift.

The key is that the current debate is about bulk telephony metadata collection, a subject that was not even on the radar screen during the post-9/11 debates over the Patriot Act. The Patriot Act was a big law that had dozens of different sections. But none of those sections involved bulk collection, which was unknown to the public and most (all?) legislators back then. Instead, most of the Patriot Act's surveillance provisions were actually pretty narrow in what the text authorized. Despite the rhetoric to the contrary, which wrongly portrayed the Patriot Act as the end of all privacy, most of what was actually in the Patriot Act was pretty modest and non-controversial. From the perspective of the public debate, bulk collection of telephony metadata wasn't on the radar screen.

The merits of bulk collection of telephony metadata entered the debate much later. In 2013, the first Snowden disclosures revealed that the Foreign Intelligence Surveillance Court (FISC) had secretly approved collection of bulk telephony metadata. As we learned, the FISC had used one section of the Patriot Act, Section 215, as the legal justification for that secret decision. But as the Second Circuit recognized just last month, that interpretation was based on a serious misreading of the Patriot Act language.

In short, the Patriot Act didn't authorize bulk surveillance; the FISC did, based on a major misreading of the Patriot Act. So while the debate over bulk collection is an important debate, Congress's cutting back the bulk telephony metadata program is not a new approach to the old debate over the Patriot Act. Instead, it's an approach to a new debate about a program that was not on the radar screen when the Patriot Act was debated. It's a new question, not an old one. As a result, there is no conflict involved in voting for the Patriot Act in 2001 and against bulk collection of telephony metadata in 2015.

None of this questions the significance of what Congress is doing. And as I said, perhaps the rhetoric is different. But I'm not sure it's accurate to see Congress's approach to telephony metadata as revealing a major change in direction from Congress's debate over the Patriot Act after 9/11.