Last night, Senate Majority Leader Mitch McConnell introduced a new, fast-tracked bill to reauthorize Section 215 of the USA PATRIOT Act. Section 215, which allows the government to collect "tangible things" relevant to an authorized terrorism investigation, is set to expire on June 1, 2015. Senator McConnell's bill would extend the provision through 2020.
Section 215 poses grave hazards to First Amendment freedoms, including newsgathering. Since 2006, the government has used its authority under Section 215 to gather "tangible things," including phone metadata records, in bulk and without suspicion. Massive, indiscriminate call tracking undermines reporters' abilities to promise confidentiality to their sources. And the knowledge that communications are being monitored has led both sources and journalists to engage in self-censorship, interfering with constitutionally-protected newsgathering activities.
The effects of bulk surveillance under Section 215 have been widely felt. Many reporters at major news organizations have said that the bulk telephone records collection program has made sources less willing to speak to them, even about matters that are not classified and that are unrelated to national security. And in its report on the telephony metadata program, the Privacy and Civil Liberties Oversight Board recognized that the scope and extent of the program's impact on journalists, reporters, and news organizations detrimentally affects the exercise of fundamental First Amendment rights.
The serious First Amendment problems posed by Section 215 must be addressed. Indeed, three separate challenges to the program are pending before circuit courts. By reauthorizing Section 215 without any reform, Senator McConnell's bill turns a blind eye to the impact that massive surveillance of communications has on free expression and the free press. Unchecked surveillance threatens to choke the flow of information to the public. Any effort to reauthorize Section 215 should include adequate safeguards and allow First Amendment activity to flourish. By renewing Section 215 as it stands, Congress would turn its back on its obligation to preserve and defend First Amendment freedoms.