Friday, May 27, 2011


UPDATE: I got the explanation utterly wrong. Thanks to Marcy for emailing me a correction.

The Terror Window is closed now, right?

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.

There was some speculation in the twitter, Marcy Wheeler, among the speculators, that one reason people got worked up about Rand Paul leaving us without the Patriot Act for seven hours or so that it may not be all that easy to turn off the NSA data vacuum, so that there could have been a period of time when the NSA may have been illegally capturing all international email and voice traffic. was "about making sure this geolocation tracking doesn’t shut down over the Memorial Day weekend," from Marcy's most recent post on the matter.