To judge by the hysterical statements issuing from elected officials—not to mention the breathless press coverage—you’d think the three little‐used Patriot Act provisions set to expire unless reauthorized today are like the doomsday timer from the TV show Lost: Fail just once to keep pushing the reset button and some unspecified catastrophe is sure to result! Under the headline “Patriot Act Battle Could Hinder Investigators,” the New York Times quotes an alarmed anonymous official calling it “unprecedented” and warning that “no one could predict what the consequences of a temporary lapse might be.” The Washington Post agrees with the need for reform, but editorializes that “[at] this late hour, it is most important to ensure that the provisions do not lapse.” The Hill uncritically quotes Senate leaders’ assertion that any lapse “would cause a major disruption to the ability of law enforcement officials to fight terrorism.”
This is not just wrong, it is rolling‐on‐the‐floor‐laughing ridiculous. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause. And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect. Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short‐term extension):
The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has
expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.
Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.
But even without the grandfather clause it’s unlikely a short‐term lapse would have much effect, because these powers are just not used all that frequently. Lone Wolf has never been used—so to be worried about this, you’d have to believe that in the span of the lapse, we’ll need it for the first time ever, and for some unfathonable reason unable to investigate effectively using ordinary criminal wiretaps. The business records provision—which would not totally expire but revert to a more limited form—is used about 40 time per year on average (though last year’s 96 uses set a new record), and was not used at all for the first few years after the passage of the Patriot Act. Somehow in the immediate aftermath of the 9/11 attacks, when you’d think the urgency would be greatest, this supposedly critical tool did not seem so critical: Indeed, Justice Department officials quite explicitly directed agents to start using it only because they worried that they had to demonstrate to Congress that they “needed” it. Here, too, there are always slightly more limited alternatives under criminal investigative authorities—not to mention the vastly more popular National Secuirty Letters—if records must be obtained. Roving wiretaps have been used 22 times per year on average, meaning they constitute something like 1 or 2 percent of FISA wiretap orders each year. Roving orders allow investigators to follow a target to new phone lines or Internet accounts without returning to the court for authority, but typically at least begin with the set of facilities the target is known to be using at the time the order is issued, so even when it’s granted the roving authority is unlikely to actually come into play immediately.
So why are so many people who ought to know better pretending that even a single day without these handful of Patriot Act authorities would somehow crack the seventh seal? Because—as the previous administration learned all too well—it’s easy to get what you want from people who are terrified, from people who believe that some looming emergency has deprived them of the luxury to stop, think, debate, and consider alternatives. And if, inconveniently, there are no real emergencies at hand, it turns out that it’s surprisingly easy to manufacture one.
