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The PATRIOT Act, Coronavirus, and the Politics of Fear

This week Congress has tackled two important issues that may not seem related at first: reauthorizing an expiring portion of the USA PATRIOT Act and legislating for those affected by COVID-19. But there is one common thread between them – each will have had their passage through the legislature amply lubricated by a potent dose of fear. Decisions made hastily under such pressure are often nigh impossible to reverse after the fact.

A quick review since it’s been two decades (and for those too young to remember). Just six weeks after the terrorist attacks of 9/11, Congress rushed through a tremendous expansion of the government’s ability to spy on, ostensibly, terrorists. What was a controversial measure even in the fear-filled aftermath of the deadliest attack on American soil since Pearl Harbor was written in secret and hotlined through both chambers of Congress with barely any chance for debate (and no chance for amendments) in only three days.

As always, the marketing of the bill obfuscated its true nature from the public. It was a simple necessity in order to keep us safe from terror, its sponsors assured Americans. And with a name like the USA PATRIOT Act, who could possibly oppose it — you’re a patriot… aren’t you? In reality, Congress was, knowingly or not, creating a veneer of legality for a flagrantly illegal dragnet telephony data mass surveillance program that had already been activated by the NSA shortly after September 11th.

It was fortunate that some individuals had the foresight to force sunset provisions into some of the more controversial authorities like Section 215, the main part of the law that was at issue in Congress this past week. Otherwise, leadership in Congress would probably continue to ignore the litany of abuses of warrantless surveillance against innocent Americans, as revealed by whistleblowers like Edward Snowden, Bill Binney, Tom Drake, and others.

Still, although sunset clauses give reformers periodic bites at the apple, nearly two decades later, most of the most dangerous authorities from the PATRIOT ACT are still on the books. Thanks only to a heroic stand led by Sen. Mike Lee (R-Utah), we’ll have another chance to change some of that in about two months, better late than never.

Turning to the response to the COVID-19 outbreak, the difficulty is that once again we are presented with a clear and present danger that most people will agree there is a legitimate need for the federal government to address. This time, the enemy is invisible and walks among us, bringing with it a specter of dread that seems to have people losing their minds, desperate to control the unknown, even if the best they can do is strip stores bare of toilet paper.

A lot of talk of fear, so here is mine: I fear that legitimate concern about the spread of COVID-19 will, just like 9/11, lead to further erosions of our basic liberties that will last long after the outbreak, and long after vaccines and testing have made the coronavirus’ most durable memory the memes it spawned on the internet.

For example, as The American Conservative’s Barbara Boland has reported, Israel has taken to domestic mass surveillance to address the spread of coronavirus, with the U.K. considering doing the same. The U.S. government, too, has reportedly already been in talks with the big tech companies about leveraging the location data they have for all their customers to track the disease’s spread. Thus far, fortunately, Google appears to have said “no,” but a mandate of this sort is certainly not impossible based on the government’s past history.

Same for the quarantine lockdowns already being implemented in some localities, which are certain to expand dramatically over the coming weeks. Never mind that there is serious evidence that militarized mass lockdowns are not an effective way to address epidemics. It’s one thing to mandate that infected individuals be isolated from others – that’s an unfortunate necessity to protect others from harm – it’s quite another to shut down an entire city for days or weeks. With mass testing for the disease finally becoming more widely available (no thanks to the government for that either), we ought to be able to handle the outbreak without a martial law style approach reminiscent of China.

Even some of the economic stimulus that is intended to be temporary could easily find a way to stick around. Things like mandatory paid sick leave may be necessary given the current economic shutdown, but should not be allowed to stick around once coronavirus is in the rearview mirror. The trillion-plus dollars of additional national debt, certainly, will stick around to haunt future generations regardless. Worse, the very infrastructure of crisis management created by these hasty measures can tend to stick around to help mismanage the next major panic, such as how portions of the 2008 Emergency Economic Stabilization Act are being used to facilitate this week’s bailouts.

Be mindful that our politicians, too, are timorous creatures, ever fearful that any action they take or any power they don’t grant the government might redound upon them in the form of their most dreaded of miseries – a loss in November. They will always value their employment over your liberties unless we the voters make clear that those two things aren’t mutually exclusive. Left to their own devices, our elected (and unelected) overlords will create a catastrophe from a crisis and congratulate themselves for averting Armageddon.