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When the sun sets on Patriot, what will spy agencies do? Roving Eye 365/Flickr, CC BY

Freedom Act denied … so what happens when Patriot expires?

Last week a proposal called the Freedom Act was defeated in the US Senate. The Freedom Act was to restrict whole-of-population collection of communications data which is currently permitted under the Patriot Act, which was enacted after 9/11, until June 2015.

The Freedom Act, were it passed, would have extended the data gathering aspect of the Patriot Act to the end of 2017. So what will happen to mass data collection when the Patriot Act expires in six months – and will there be any effects in Australia?

Patriot Act 101

The Patriot Act is a forbiddingly long, opaque statute. The name is an acronym (or, strictly speaking, a backronym) for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. Those tools are provided to the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA; counterpart to the Australian Signals Directorate).

They are also provided to bodies such as the Department of Homeland Security (the apparent model for Immigration Minister Scott Morrison’s controversial Department of Immigration & Border Protection).

Patriot is very broad. It has attracted global attention as a mechanism for comprehensive official access, typically on an undisclosed basis, to electronic information. That information might relate to financial transactions, email, internet records, library records or even the essays of Australian university students whose institutions rely on US-based anti-plagiarism services. It also encompasses detention of aliens and undisclosed searches of residential and business premises.

It is a foundation of contemporary US national security law, and is borne in mind by Australian security agencies. It has been contested in US courts, with occasional success, but overall has been strongly embraced by Republicans and Democrats.

That’s echoed in Australia, where neither the government nor the opposition has been willing to deprive federal policing agencies of an early Christmas present in the form of new national security hyperlegislation. Aspects of Patriot have been damned by independent experts as neither necessary nor effective, in much the same way that parts of Australian security legislation are redundant or unusable.

Post-June activities

Patriot is a sunset statute and is scheduled to end mid-2015. The proposed Freedom Act was a messy compromise, bringing together politicians who want to restrict some electronic data gathering/ analysis and those such as Senator Rand Paul who thought Patriot was too weak.

Defeat of the Freedom Bill is unsurprising and isn’t a major step for strengthening civil liberties. With the Republicans set to control both chambers of the national legislature at the beginning of 2015 we can expect that Patriot will be repackaged before it expires, probably with a new expiry date of 2020 or 2025.

The NSA and FBI will keep on doing what they’ve been doing, unfussed by noises from the White House and not greatly inconvenienced by congressional inquiries or action in the courts.

The alleged need “not to know” means that the public have little sense of whether there are abuses and whether implementation of Patriot is grossly inefficient.

The view from here

In Australia we might be asking similar hard questions and not endorsing every statement that’s wrapped in a flag or rhetoric about sacrificing liberties as the cost of fighting a 100-year war on terror.

That cost, of course, might be the demise of the official accountability and public freedoms that differentiate Australia from totalitarian states such as China and Russia or terrorist groups such as ISIS.

The government appears headed towards mandatory comprehensive collection and easy access – by law enforcement entities – of Australian communications data. We have no protection through a Bill of Rights. The Inspector General of Intelligence & Security is underfunded.

The Office of the Australian Information Commissioner is moribund, with fundamental uncertainties about the effectiveness of a national Privacy Commissioner that may – or may not – end up as a “bubble” within the Human Rights Commission.

Given that Parliamentary committees have recently allowed a mere week for public consultation about far-reaching and chilling national security statutes, we might hope that the opposition stands with Senator Scott Ludlam in questioning the necessity and form of our latest national security legislation.

That’s one thing that separates deliberative democracy from rubber stamp.

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