The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-Terrorism Laws

On June 5, 2013, the world learned that the National Security Agency (NSA), America’s largest intelligence-gathering organization, had been gathering the metadata of all the phone calls made by Verizon customers since early April 2013. The next day, two prominent newspapers reported that PRISM, a top secret NSA program, had been vacuuming up customer data from some of the world’s largest and best known information technology (IT) firms—including Google, Apple, Facebook, and Microsoft—directly from their servers. Director of National Intelligence James Clapper later clarified that specific requests for customer data from these IT firms were subject to tight legal controls and only targeted non-US citizens. But Clapper’s comments did little to calm frayed nerves.

A public outcry ensued, with some loudly opposing the NSA’s surveillance programs and others forcefully defending them. The New York Times condemned the NSA surveillance in an editorial and the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the constitutionality of the NSA telephone call metadata collection program. Former Vice President Al Gore called the surveillance “obscenely outrageous” on Twitter. But others came out in support of the NSA’s efforts. Senator Lindsay Graham said “I am a Verizon customer…it doesn’t bother me one bit for the NSA to have my phone number.” Max Boot, a senior fellow with the think tank Council on Foreign Relations, credited the NSA surveillance with helping to reduce the number of terrorist incidents on US soil since the attacks of September 11, 2001. A Pew Research Center poll suggested that there was significant support among the American public for the NSA’s surveillance efforts. Despite the heated rhetoric on both sides of the surveillance debate, the NSA’s collection of telephone call metadata appears to be legal based upon the Foreign Intelligence Surveillance Court’s (FISC) interpretation of section 215 of the USA PATRIOT Act.

Perhaps the most interesting remarks about the NSA controversy thus far came from Representative Jim Sensenbrenner, one of the original authors of the USA PATRIOT Act. He wrote that when the Act was first drafted, one of the most controversial provisions concerned the process by which government agencies obtain business records for intelligence or law enforcement purposes. Sensenbrenner stated that particular provision of the Act requires government lawyers to prove to the FISC that a request for specific business records is linked to an “authorized investigation” and further stated that “targeting US citizens is prohibited” as part of the request. Sensenbrenner argued that the NSA telephone metadata collection is a bridge too far and falls well outside the original intended scope of the Act: “[t]he administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this [NSA surveillance] is an abuse of that law.”

Acknowledging that Sensenbrenner’s statements may have been motivated in part by political interests, the perceived creeping expansion of the USA PATRIOT Act—the “abuse” that Sensenbrenner describes in the context of the NSA surveillance controversy—is consistent with what is known as the “ratchet effect” in legal scholarship.

The ratchet effect is a unidirectional change in some legal variable that can become entrenched over time, setting in motion a process that can then repeat itself indefinitely.[1] For example, some scholars argued that anti-terrorism laws tend to erode civil liberties and establish a new baseline of legal “normalcy” from which further extraordinary measures spring in future crises.[2] This process is consistent with the ratchet effect, for it suggests a “stickiness” in anti-terrorism laws that makes it harder to scale back or reverse their provisions. Each new baseline of legal normalcy represents a new launching pad for additional future anti-terrorism measures.

There is not universal consensus on whether or not the ratchet effect is real, nor on how powerful it may be. Posner and Vermeule call ratchet effect explanations “methodologically suspect.”[3] They note that accounts of the ratchet effect often ring hollow, for they “fail to supply an explanation of such a process…and if there is such a mechanism [to cause the ratchet effect], it is not clear that the resulting ratchet process is bad.”[4]

I argue that the recent controversy surrounding the NSA’s intelligence collection efforts underscores the relevance of the ratchet effect to scholarly discussions of anti-terrorism laws. I do not seek to prove or disprove that the recent NSA surveillance controversy illustrates the ratchet effect at work, nor do I debate the potential strength or weakness of the ratchet effect as an explanation for the staying power or growth of anti-terrorism laws. As Sensenbrenner’s recent comments make clear, part of the original intent of the USA PATRIOT Act appears to have been lost in interpretation. It is reasonable to suggest that future anti-terrorism laws may suffer a similar fate. Scholars can therefore benefit from exploring how the USA PATRIOT Act took shape and evolved, and why anti-terrorism laws can be difficult to unwind.

The USA PATRIOT Act: a Sticky History

 

A brief survey of the history of the USA PATRIOT Act provides a glimpse of how anti-terrorism laws can form after terrorist attacks, how the effects of these laws can quickly expand, and how efforts to modify or repeal portions can prove challenging. An initial draft of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 developed within a week of the September 11^th terrorist attacks.[5] At approximately the same time, government officials’ and popular media outlets’ offices nationwide received anonymous letters containing weapons-grade anthrax.

After then-President George W. Bush signed the Act, it increased law enforcement powers within the United States, began to break down historical barriers against information sharing between police and intelligence agencies, and expanded the definition of terrorism in 18 USC § 2331.[6] Moreover, the Act assigned lead investigative authority in terrorism cases to the U.S. Department of Justice (DOJ). Previously, this responsibility was spread among a number of agencies, including the Department of the Treasury (DOT), the Department of Defense (DOD), and the DOJ.[7]

The Act provoked controversy after it was passed and, as the recent NSA surveillance revelations make clear, it continues to do so today. Putting aside section 215 of the Act, which relates directly to the NSA’s collection of telephone call metadata from Verizon, another contentious area is the Act’s permitting searches of personal library records and other organizational files via issuance of National Security Letters (NSLs). Federal agencies use NSLs to demand disclosure of certain records from an organization; they are a form of administrative subpoena that can be issued without judicial review.[8] The number of NSLs drastically increased after the Act took effect. In 2000, the Federal Bureau of Investigation issued approximately 8,000 NSLs. In 2004, by contrast, the FBI issued 56,000 NSLs. IT firms like Google, Twitter, and Yahoo have also been issued NSLs, though secrecy rules bar their lawyers from discussing the nature of these NSLs openly.

In the twelve years since the Act’s entrance into use, governments, civic organizations, and citizens sought repeatedly to modify and repeal portions of the Act without success. Two years after the Act became law, local governments in Ann Arbor, Oklahoma City, New York, and Philadelphia passed resolutions against it.[9] Members of the U.S. Senate and U.S. House of Representatives introduced separate pieces of legislation seeking to scale back the Act’s original scope. The American Library Association (ALA) and American Civil Liberties Union (ACLU) lobbied against provisions of the Act. Doe v. Gonzales—a case that reached the U.S. Supreme Court—raised serious questions about the Act’s constitutionality. Yet despite this steady drumbeat of concern around the Act’s expansion of government power, both Republican and Democratic administrations renewed provisions of the Act that had been set to expire.

This brief history reflects  the difficulties governments, civic groups, and citizens face in attempting to modify or repeal portions of the USA PATRIOT Act. This difficulty is for good reason. Al-Qaeda has been degraded significantly since 9/11, but terrorism remains a significant threat to the United States, as the April 2013 Boston Marathon bombing vividly illustrates. In light of the continuing threat of terrorism in the United States, it is worth exploring the reasons why anti-terrorism laws like the USA PATRIOT Act can prove difficult to scale back.  The list of causes below is not meant to be exhaustive, but to show how a constellation of variables can help to cement anti-terrorism laws in place.

The ratchet effect can occur because anti-terrorism laws are effective.

Anti-terrorism laws may stick simply because they work. If so, then scaling back or reversing an effective anti-terrorism law would increase a nation’s vulnerability to terrorism, pulling it back toward a condition that existed before the law initially went into effect. This goes against national security interests, so it makes sense to leave these laws on the books.

The ratchet effect can occur because anti-terrorism laws may address multiple threats.

Anti-terrorism laws may come about because of a particular terrorist group or incident. But that does not necessarily mean the laws will work only for that group, or apply only to similar types of terrorist attacks. Al-Qaeda’s attack on 9/11 spurred the creation of the USA PATRIOT Act. Yet today the Act’s provisions can also impede domestic terrorist organizations like the Animal Liberation Front (ALF) and Earth Liberation Front (ELF) by facilitating intelligence sharing for law enforcement purposes.

The ratchet effect can occur because it is challenging to repeal laws in democracies.

Absent “sunset” provisions, which force certain portions of a law to expire after a pre-determined amount of time, it can be difficult to repeal a law under normal circumstances—let alone when that law concerns something as serious as terrorism. It requires careful political maneuvering to reverse an anti-terrorism law because the law itself may enjoy popular support, be seen as effective, or be linked to vested economic interests. These obstacles can promote a legal inertia that resists efforts to scale back or reverse the law.

The ratchet effect can occur because elected officials do not want to risk repealing anti-terrorism laws.

Here is a political nightmare: for whatever reason, a legislator or government executive spearheads an effort to reverse an anti-terrorism law. The anti-terrorism law is repealed. Within a week, a terrorist attack occurs. Being wrong about terrorism can carry devastating political consequences for incumbents. But being specifically identified as the one who “turned off the alarm system” is a political death sentence. Under this scenario, even if there is no direct causal link between the law’s repeal and the attack, the two are easily correlated because of their temporal proximity to each other. It makes no sense for an elected official to open herself to the possibility of this scenario without a clear, compelling reason—and, even then, scaling back an anti-terrorism law may still be too politically risky a proposition to entertain seriously. For these reasons, anti-terrorism laws can remain in effect beyond the end of the crisis that brought them into existence.

The ratchet effect can occur because there is increased public deference to government during crises.

Legal scholars and political scientists have explored the effect of terrorism on public deference to democratic governments.[10] While the specific reasons for this vary, the research overwhelmingly points toward increased trust in government authorities in the immediate wake of terrorist attacks, though this can wane over time. Popular support can provide the political capital necessary for legislators and executives to quickly craft and implement anti-terrorism laws. Over time, despite some slippage, public approval of these laws can continue—particularly when the crisis that prompted the laws’ creation continues.

The ratchet effect can occur because anti-terrorism laws create a new security paradigm.

An aggressive anti-terrorism law can fundamentally alter societal approaches to terrorism. Surveillance may increase. Police powers can expand. Intelligence efforts may grow. Public expectations of privacy can diminish. In the aggregate, these types of changes can represent a drastic change in a government’s approach to terrorism, and effectively create a “new normal” level of security. Because this “new normal” is linked to the law itself, reversing the law begins to dismantle the new security paradigm. From the public’s perspective, this might be an unacceptable option because it may increase societal vulnerability to terrorism. Government agencies also risk losing resources—personnel, money, and political support—by returning to the status quo ante.

What the NSA Surveillance Controversy Can Teach Us about the Ratchet Effect and Anti-Terrorism Laws

 

After a terrorist attack, creating laws quickly to contend with terrorism is reasonable and appropriate. It is equally reasonable and appropriate, however, to build hedges into those laws to guard against unsound initial judgments or assumptions. The set of policy recommendations below provides a starting point to mitigate the potential impact of the ratchet effect upon anti-terrorism laws. Taking these steps does not guarantee that anti-terrorism laws will be easy to scale-back or reverse, nor can it completely prevent unintentional interpretations of anti-terrorism laws. But these recommendations can increase policymakers’ awareness of the ratchet effect, which can lead to more thoughtfully crafted and effective anti-terrorism laws.

First, initial changes may be difficult to undo. The early legislative moves after a terrorist attack are pivotal. They set the tone for future, related legislation. Moreover, as argued earlier in this article, changing laws can be difficult under normal circumstances, let alone when the laws concern an issue as serious as terrorism. It is vital for leaders to get the beginning stages of a nation’s anti-terrorism legislation right; a bad start can lead to a pattern of subsequent bad laws. This is not a call for perfection, but a plea for greater awareness of this reality and for leaders to use this awareness when drafting laws.

Second, policymakers should beware of reflexive legislation. Terror attacks create conditions in which emotions can run high; feelings of terror, anger, sadness, confusion, and frustration are natural consequences of these circumstances. Behavioral psychology teaches us that human beings’ higher-order thinking skills (e.g. logic, reasoning, analysis, reflection) are poorly integrated with baser, emotionally-rooted thinking (e.g. irrational prejudices, unreasonable fears, self-destructive desires).[11] One researcher has gone so far as to say that the amygdala—the portion of the brain that controls reactive emotion—can hijack the higher-order parts of the brain, impeding effective decision-making in crises.[12] Considering this, it is reasonable to suggest that laws passed in the immediate aftermath of terrorist attacks may be rooted more in baser, emotionally-driven thinking than in careful, analytical, higher-order thinking. In other words, they may be mostly reflexive, not reflective. This is not to say that all laws passed after terrorist attacks are emotionally-driven. Nor is it the case that all laws created in these circumstances are somehow “bad” laws. But during and after terrorist attacks, leaders’ judgment of what may or may not be good law can become clouded by emotion. Similarly, terrorist attacks can drive public support for reflexive anti-terrorism legislation. And this is not an instinct that can be somehow “shut off” or “tuned out.” Legislators and citizens should be aware of this potential, and must walk a fine line between meeting immediate post-crisis needs and championing laws that will remain effective for the long haul.

Third, “sunset” provisions are prudent and reasonable. Given that anti-terrorism laws passed in the wake of terrorist attacks may be partly driven by emotion and that initial laws may prove difficult to undo, it is wise for government leaders to include “sunset” provisions in new anti-terrorism laws. Generally “sunset” provisions allow portions of a law to expire if not renewed by a pre-determined date. In a sense, democracies must deliver a new mandate for the law—or at least part of the law—to avoid this expiration. With “sunset” provisions in place, unwise, irrelevant, or ineffective components of a law can be allowed to wither and die when necessary. Letting these provisions lapse requires virtually no political capital from government leaders, unlike actively changing or removing a law, which can require a great deal. For elected officials, this means that letting part of an anti-terrorism law expire is relatively easy. Re-examining and pruning anti-terrorism laws in this way is a healthy practice. It can head off potential abuses of particularly aggressive anti-terrorism measures and forces a continual re-thinking of anti-terrorism laws as circumstances change over time.

The recent NSA surveillance controversy highlights the relevance of the ratchet effect to broader discussions of anti-terrorism laws. The ratchet effect can affect anti-terrorism laws generally, entrenching and expanding them over time and potentially leading to those laws being interpreted in unexpected and undesirable ways. The USA PATRIOT Act, developed in the aftermath of the 9/11 terrorist attacks, has been difficult to scale back since then, and has now been interpreted in a way that at least one of the Act’s authors did not intend. This unintended interpretation of the Act led, in part, to today’s NSA surveillance controversy. Scholars can benefit from future explorations of the ratchet effect, which may help illuminate further why anti-terrorism laws remain in place and how their influence can expand in unanticipated ways.

*Austen D. Givens is a PhD student in the Department of Political Economy at King’s College London. His forthcoming book with Nathan E. Busch, The Business of Counterterrorism: Public-Private Partnerships in Homeland Security, will be published by Peter Lang.