A French Patriot Act? How not to pass anti-terror laws

The “temptation”, as the French daily Le Monde put it, to espouse US-style surveillance legislation to more closely monitor terror suspects appears to be far less appealing to the privacy-loving French than it was to the Americans some 13 years ago, when the Patriot Act was heartily endorsed by both senators and the public.

Conservative lawmaker Valérie Pécresse sparked an outcry in France last week when she gave favourable mention to the infamous bill. Historian Antonin Benoît responded to the former minister on Rue89.com, arguing that the Patriot Act would have been considered by the Romans as constituting “a dictatorship”. For many in France, the name invokes the calamitous project that George W. Bush dubbed America’s "War on Terror”.

Even in the US, the Patriot Act is today viewed as something of a Big Government betrayal, giving the National Security Agency (NSA) carte blanche to indulge in mass snooping on its own people.

But the Patriot Act in its original form was not designed to allow the collection of the communication records of the entire country, a programme which was revealed only 12 years after it came into effect by documents leaked by NSA whistleblower Edward Snowden.

The House representative who authored the Patriot Act, Republican Jim Sensenbrenner, condemned the NSA’s “abuse” of the law shortly after the Snowden revelations, saying in a Guardian opinion piece: “The administration claims authority to sift through the details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

‘A modest piece of legislation’

William Bendix, a professor of political science at Keene State College and Patriot Act specialist, credits the legislation for enforcing the crucial sharing of intelligence between agencies and allowing counter-terrorism officers to access the same tools as their white-collar counterparts.

“The Patriot Act is, for the most part, a modest piece of legislation that made careful changes to surveillance law,” he told FRANCE 24 in a telephone interview on Thursday.

“If you look at what existed before and after 9/11, the Patriot Act made relatively narrow changes. Many of the tools that the bill authorised, such as secret searches, were available to criminal investigators for a very long time beforehand. Contrary to popular belief, the Patriot Act has nothing to do with the use of torture, Guantanamo Bay or indefinite detention.”

Bendix agrees with Sensenbrenner that the bill has been exploited by the intelligence agencies, but blames legislators for failing to efficiently monitor its implementation.

“The way the Patriot Act has been interpreted by the court and implemented by the NSA deviates significantly from what Congress intended,” he said. “But unless legislators are engaged in thorough, ongoing oversight of the intelligence agencies, it really doesn’t matter what bills you pass or don’t pass; you are allowing for overreach.”

Mark Rumold, a lawyer with the nonprofit digital rights group Electronic Frontier Foundation, blames the hasty adoption of the act – it was signed into law just 45 days after the 9/11 attacks – as its downfall.

“There’s a legitimate impulse to do something, and for elected officials that means passing laws,” he told FRANCE 24. “But laws drafted and passed hastily in the direct, emotional, aftermath of attacks – while they might be well-motivated – are at risk of being used in ways that are far broader than anticipated and of being more of an encroachment on civil liberty than is necessary.”

The bill originally included four-year sunset clauses on each of its 17 provisions, a security measure which Sensenbrenner believed would “allow Congress to conduct oversight [...] and prevent abuse”. Today, all but two of the provisions have been made permanent, effectively removing that safeguard (along with any hope that the Patriot Act was a temporary measure).

‘Almost Orwellian technology’

One of those non-permanent provisions is Section 215, which is blamed for the NSA’s colossal metadata programme. Section 215 was originally meant for FBI investigators to obtain the private records of named suspects, Bendix explains. But a “broad interpretation by the Foreign Intelligence Surveillance Court (FISA), which favoured aggressive surveillance and security measures”, allowed for the NSA’s deviant implementation of the law.

On June 1, the controversial clause is up for renewal in Congress. Analysts are expecting the matter to result in gridlock.

“Many Democrats as well as Tea Party Republicans want to see section 215 significantly curtailed,” Bendix says. “They don’t want the NSA scooping up these communication records and storing them for multiple years at a time and having indiscriminate access to the communication records of Americans. But most Republicans are highly supportive of aggressive surveillance security strategies and they oppose any significant restrictions on the NSA.”

Rumold finds the prospect of renewing Section 215 “troubling”. While American intelligence has demonstrated an effectiveness in disrupting terrorist activity since 9/11, those successes have not been attributed to the collection of metadata.

The Privacy and Civil Liberties Oversight Board, which studied 54 terror plots prevented by the NSA over the past 13 years, found in July 2014 that the metadata programme did not contribute “in any way” to the prevention of those 54 attacks.

And in December 2013, Federal Judge Richard Leon ruled that the data-gathering programme, which he described as the result of “almost Orwellian” technology, likely violated constitutional protections.

Metadata collection also failed to prevent attacks such as the Fort Hood shooting of 2009 and the 2013 Boston Marathon attack, and has proved massively detrimental to public trust.

Misplaced credit

Nonetheless, the programme continues to receive the stubborn support of a largely Republican base, galvanised by a stream of terror attacks and foiled plots.

On Thursday, House Speaker John Boehner credited FISA tactics for the arrest of an Islamic State group sympathiser in Ohio who is accused of plotting an attack on Capitol Hill.

“With regard to the threat to the Capitol, coming frankly not far from where I live, the first thing that strikes me is we would have never known about this had it not been for the FISA programme and our ability to collect information on people who pose an imminent threat,” Boehner told reporters.

But according to the FBI, the authorities were alerted to the 20-year-old’s aspirations through comments he published on his Twitter feed, not because of NSA metadata collection.

In what would likely dismay the four million people who marched in support of freedom of expression following last week’s shooting at satirical weekly Charlie Hebdo, Rumold says that the attack in France will serve to support the continuation of intensive surveillance.

Former CIA director Michael Hayden told MSBNC as the attacks were unfolding in France that “metadata doesn’t look all that scary this morning, and I wouldn’t be surprised if the French services pick up cell phones associated with the attack and ask the Americans, ‘Where have you seen these phones active globally?’”

“That’s the problem with terrorism, it scares people and allows for reason to be thrown out of the window,” says Rumold.

‘Cautionary tale’ for the French

While most French scoff at the idea of a “Patriot Act à la française”, a survey published by Harris Interactive on Wednesday showed that 77 percent of respondents were “favourable to a better control of social networks in the fight against terrorism, even if it meant restricting civil liberties”.

President François Hollande has already announced new security measures which will include "the increased monitoring of the travel of suspected radicals, as well as the closer monitoring of communications and the Internet for signs of extremism".

On January 22, just 13 days after the third and final day of attacks, French Interior Minister Bernard Cazeneuve is to submit a proposal on bolstering the country’s intelligence services.

Rumold believes that the Patriot Act, and specifically the abuse of Section 215, should be seen as a “cautionary tale” for the French in reforming their own surveillance laws.

“The American example should be a reminder for the French of how not to pass laws in response to terrorist attacks. When you give your intelligence agencies carte blanche for them to do what they deem necessary and allow them to operate in secrecy, this surveillance whirl can spin out of control.”