Four questions Belgians should ask about the Patriot Act

The Brussels Airport begins reopening with new restrictions in place, April 4, 2016. REUTERS/Benoit Doppagne/Pool. REUTERS/Benoit Doppagne

In March, three bombings in Brussels claimed 32 lives and injured more than 300. The Islamic State, or ISIS, claimed responsibility for the attacks.

These events are disturbingly similar to the November 2015 terror attacks in Paris that claimed 130 lives – and for which ISIS also claimed responsibility.

The attacks added a sense of urgency to calls for Belgium to enact its own counterterrorism bill.

It is a call the French government has already answered. After the attacks against Charlie Hebdo last January, France passed a surveillance law giving the government greater authority in counterterrorism investigations. Valérie Pécresse, a minister under former president Nicolas Sarkozy, described the pending legislation as a “French Patriot Act,” suggesting that France looked to the U.S. law, which was passed just 45 days after September 11, 2001, as a model.

New Yorkers protest the Patriot Act in 2006. https://www.flickr.com/photos/crazbabe21/2303197115, CC BY

Increased use of surveillance is a worldwide trend. According to a 2013 study, 35 of 60 countries examined have increased regulation and monitoring of online activity. Several human rights groups, including Amnesty International, have criticized these measures as a violation of privacy and free expression.

I have been studying how the U.S. media is covering the French surveillance law, and how this derivative law compares to the U.S. Patriot Act.

If Belgium decides to pass similar legislation, what questions should Belgians ask about these existing laws?

1. What powers do the laws grant?

Under the French surveillance law, investigators can now monitor phone calls and emails of suspected terrorists without a court order. Officials only have to obtain permission from an administrative committee, the National Commission for the Control of Intelligence Techniques. This committee is managed by French Prime Minister Manuel Valls and consists of magistrates, members of parliament and senators.

In the U.S., it is the Foreign Intelligence Surveillance Court, or FISA court, that serves this purpose.

Unlike a traditional courtroom, the FISA court is closed to the public. Hearings include only the judge, attorneys licensed to practice in front of the U.S. government and other government officials. The secrecy is designed to prevent the exposure of classified information. For this reason, the FISA courts have sometimes been criticized as a “rubber stamp” for the National Security Administration.

In the U.S., the final decision on whether to grant a surveillance warrant is in the hands of a federal judge. In France, by contrast, only a few of the surveillance committee members are judges. The rest are politicians. In theory, this means that the French surveillance committee may be more vulnerable to political manipulation. Given recent criticisms of the FISA court, however, this may not be the case in practice. According to one source, the court accepts at least 75 percent of government requested warrants without modification.

There are cases in which the U.S. Patriot Act authorizes warrantless searches, but these can be used only to obtain records of phone numbers dialed, materials accessed and so on, not the content of phone calls or communications.

2. Online activities watched, too

Another major element of the French surveillance law is the requirement that Internet service providers permit the French government to routinely monitor suspicious online behavior.

French intelligence services have the right to place recording devices, cameras and keylogger technology that keep track of all keystrokes in real time. The recordings can be stored for a month.

Metadata can be kept for five years. Metadata is information about a consumer’s phone or Internet use. Phone metadata can include all the information surrounding a phone call, such as the caller’s number and the receiver’s number, time and location of the call, and how long the call lasts. However, metadata does not include the content of the phone call itself. Internet metadata can include information such as websites visited, TV shows streamed or emails sent.

The Patriot Act also allows for the NSA to collect metadata. If the government feels there is threat, a petition can be made to the FISA court for a warrant. This warrant allows the government to force phone companies to hand over private information on certain customers. In June 2013, Edward Snowden, a government contractor, revealed the NSA had a program called PRISM. The program uses extensive data mining efforts to collect Internet communication data and analyze it for patterns of terrorist or other potential criminal activity.

After the Snowden leaks, legislators pushed for Patriot Act reform, largely to end bulk data collection. In 2015, the U.S. passed the Freedom Act, which now requires a public advocate at FISA court hearings to argue for protection of private data. The Freedom Act also prevents the U.S. government from collecting phone record data. Instead, companies like Verizon are required to collect this information and maintain records that the government can search on request.

3. How has the public reacted?

An opinion poll conducted in May 2015 found that 60 percent of Americans believe the Patriot Act should be reformed. Just 34 percent said the government should keep the act in its current form.

In contrast, an opinion poll conducted in April 2015 found that about two-thirds of French citizens were in favor of restricting civil liberties to support counterterrorism. Just after the November 2015 terror attacks, this number jumped to more than 80 percent.

While public support for measures like these is usually high after a terrorist attack, these poll results indicate that support decreases as attention to a terrorist attack fades, and as challenges with implementation, controversial cases and related issues surface in the mass media.

4. Are these laws effective?

Belgian soldiers guard a metro station. REUTERS/Yves Herman

Of course, the French surveillance law didn’t stop the attacks in November 2015. Understanding why may help Belgium lawmakers craft a more potent law.

One identifiable shortcoming is limited resources. According to the Guardian, the French intelligence agencies have roughly 500 to 600 employees, while there are about 11,000 people on their watch lists, including more than 1,000 citizens who have recently traveled to Iraq or Syria.

Another problem: The French intelligence agencies are reluctant to share communications between each other due to the fear of leaked information.

When the agencies do communicate, the process is slow. This creates even more strain.

The Patriot Act has also not been as effective as some had hoped.

In 2015, Inspector General Michael E. Horowitz stated that bulk data collection had not resulted in any major case developments. This was partially due to the amount of information collected about ordinary citizens. It took several years for U.S. officials to find ways to improve data collection.

The Heritage Organization claims that about 30 terrorist attacks were prevented between 2001 and 2010 through measures provided by the Patriot Act. However, 30 states and Washington, D.C. have experienced terrorist attacks since 2001.

There is no guarantee that even with the most sophisticated surveillance technology out there today, passing a bill or law to collect private information on citizens will protect us from terrorist threats and violence.

Even more vexing: the nature of intelligence gathering means we may never know how exactly how many attacks have been prevented by the Patriot Act, the French surveillance law – or a similar law that Belgium may soon pass.

Ashley Boyer, a masters student of public administration at Pennsylvania State University, contributed to this article.