Mostly Harmless, or Enabling Unchecked Surveillance?
At first glance, section 225 of the USA PATRIOT Act seems pretty harmless. It gives legal immunity to Internet service providers (ISPs), phone companies, landlords, and others who assist foreign intelligence investigators in secretly conducting wiretaps or physical searches. Third parties who help with garden-variety criminal wiretaps already have this protection, so why shouldn't the same rules apply in foreign intelligence cases? And why would we want Ma Bell or Pa AOL to get sued just for helping catch terrorists? Those were the Justice Department's sensible-sounding arguments.
On second glance, though, it's clear that 225 is just one of many parts of the law making it near-impossible for anyone to challenge the federal government's broad surveillance authority under the Foreign Intelligence Surveillance Act (FISA)—powers PATRIOT greatly expanded. Unless those other parts of the law are reined in, Section 225 should not be renewed. That way, perhaps the fear of liability will prompt ISPs and phone companies to act as a check against abuse of power by challenging FISA orders they think are unconstitutional or otherwise illegal.
Foreign Intelligence Surveillance: An Offer Your ISP Can't Refuse
Imagine you work for a phone company or an ISP. Or maybe you're the landlord of an apartment complex. Imagine that one day several federal agents arrive in your office and present you with a document demanding that you assist them in secretly intercepting a customer's communications or sneaking into a tenant's apartment. The document, along with the polite but insistent federal agents, explains that this is an international terrorism investigation and it's an emergency. The wiretap or search, they say, is authorized by the FISA statute and has been approved personally by the Attorney General of the United States.
Obviously, they explain, you will never be allowed to tell anyone about how you helped them spy on your customers or tenants, because national security cases require the utmost secrecy. Furthermore, unlike in regular criminal cases where eventually notifying surveillance targets is required by law, the targets in this case will never be notified. And even if your customers or tenants did find out and wanted to sue, Section 225 of the PATRIOT Act would completely shield you from any legal liability, regardless of whether the search or wiretap ended up violating the FISA statute or the Constitution.
Besides, even if you wanted to resist, the secret FISA court that administers foreign intelligence surveillance only hears argument from the Justice Department. The "court" doesn't even have a public address that you could send legal papers to! To top it off, it's unclear from the statute whether you'd be violating the gag order if you told a lawyer about the surveillance, or went to a regular federal district court to challenge it.
So, if you comply with the order, no one will find out, you can't get sued, and it won't cost you a thing—the government will cover all the costs. Would you say no to the order? Would you even bother to call a lawyer?
Why Section 225 Should Sunset
When taken alone, Section 225 appears reasonable. But when taken in context with all of the above—the lack of any procedure to challenge a FISA order, the never-ending gag order that forever bans you from telling anyone, the secret court that won't listen to your arguments—it's just another incentive for ISPs and phone companies to bend to the demands of the Justice Department or the FISA Court, even when the demand is legally questionable.
If those who are asked to help with FISA surveillance don't challenge the process, no one will—because no one else can. Rather than giving ISPs and phone companies a free pass to collaborate with the government in potentially illegal wiretapping, the law must give them an incentive to go to court when they smell something fishy—and provide them a clear procedure for doing so. Right now, the law does neither. Make Congress fix the law: oppose PATRIOT renewal and demand accountability, from both the government and your ISP!
