The Wall Street Journal - 28.10.2019

THE WALL STREET JOURNAL. Monday, October 28, 2019 |A

T

o keep America safe, does
the Federal Bureau of In-
vestigation really need al-
most unfettered access to
Americans’ health records,
DNA test results, and even private
conversations overheard by digital
assistants like Alexa and Siri? News
broke earlier this month that the se-
cret Foreign Intelligence Surveillance
Court had admonished the FBI for il-
legally spying on Americans tens of
thousands of times. The court’s rep-
rimand of the FBI’s “unduly lax”
treatment of foreign surveillance
powers—meant for spies and terror-
ists—raises equally pressing con-
cerns about itsdomesticsurveillance
authority.

When we supported Section 215 of
the Patriot Act, which will expire
Dec. 15 if it isn’t reauthorized, we
trusted the FBI and other agencies to
act responsibly in accessing the do-
mestic records of large U.S. busi-
nesses to counter national-security
threats. But the security agencies ap-
pear to have abused Section 215
nearly as often as their foreign sur-
veillance authority. Their broad in-
terpretation of that statute has gone
well beyond Congress’s original un-
derstanding—and common sense.
This was apparent during a Sept.

The Patriot Act Goes Too Far

18 House Judiciary Committee hear-

ing on the Trump administration’s

request for the law’s unconditional,

permanent reauthorization. A Justice

Department lawyer representing the

agencies was asked a series of ques-

tions about what Section 215 covers.

Americans’ health records? “Yes.”

DNA test results? “Yes.” Digital me-

dia stored by U.S. companies? “Yes.”

Answering without hesitation, the

lawyer signaled that the Justice De-

partment and other agencies under-

stand the statute to cover virtually

any information stored or processed

by a business. So interpreted, Sec-

tion 215 is a grave threat to the con-

stitutional rights of Americans.

First, it’s a threat to Fourth

Amendment rights. That amendment

specifies that “no warrants shall is-

sue, but upon probable cause”—that

is, a demonstration that a crime

might have been or may be commit-

ted. Yet Section 215 allows intelli-

gence agencies to obtain a court war-

rant forcing a business to preserve

and search consumers’ private infor-

mation without any showing of prob-

able cause.

The absence of such a standard

has already led to widespread abuse,

including the infamous call-detail-re-

cords database. It contained the tele-

phone-call metadata, including phone

numbers and the time, duration and

details of calls and texts, which re-

veal much about the private lives of

hundreds of millions of Americans.

The government has never linked

this program to the foiling of a ter-

rorist plot. Even after legislation was

passed in 2015 to rein in the pro-

gram, the agencies were ultimately

forced to suspend the call-detail-re-

cord program last year, when they

realized it was collecting far more

data than they could handle and was

violating even their own expansive

view of their authority.

The problem doesn’t end there.

The security agencies’ broad inter-

pretation of what constitutes a cov-

ered business record, a “tangible

thing” held by a business, means that

almost any information can be ob-

tained merely because it is deemed

“relevant” to a national-security in-

vestigation—which is entirely within

the control of the relevant agency. So

conversations with Alexa or Siri as

well as health-care or genetic records

are all fair game if the agency can ar-

ticulate some link, however tenuous,

to an agency-created investigation.

Second, under the agencies’ inter-

pretation, Section 215 threatens First

Amendment rights. The statute says

a warrant cannot be issued if the re-

quest is based solely on the subject

of the investigation exercising First

Amendment rights, such as the right

to speak or practice his religion. But

the “solely” qualification means that

agencies simply can concoct some

additional reason other than speech,

no matter how tenuous, and the war-

rant must be granted. Mere atten-

dance at a Muslim prayer service, for

example, could trigger a warrant if

the agency articulates an additional,

nonprotected concern, such as the

presence of aliens who are in the

country illegally—even if its true

concern is the Muslim prayer.

With these glaring flaws in mind,

how should Congress respond to the

agencies’ request to reauthorize Sec-

tion 215? We believe the law should be

reauthorized for a limited period, but

only with significant alterations.

To begin, the standard for grant-

ing a warrant under Section 215

should be refined to require a dem-

onstration of probable cause—the

usual Fourth Amendment standard—

unless the agency can establish a

good-faith belief that the person at

issue isn’t an American citizen. Such

a standard would still allow the

agency to obtain a warrant for any

kind of business record, even those

relating to American citizens, if the

agency can demonstrate a legitimate

reason.

Similarly, Section 215 should be

amended to require that a request

for a warrant must not be based in

substantial part on protected First

Amendment activity. Here again,

such a requirement would leave the

agency free to obtain any kind of

business record as long as the court

is persuaded the request isn’t sub-

stantially based upon, and is there-

fore unlikely to infringe, the exercise

of First Amendment rights.

In light of the growing evidence of

overreach, our federal law-enforce-

ment and intelligence agencies’ nec-

essary efforts to gather information

must be subjected to additional over-

sight. It is the only way to protect

Americans’ privacy and constitu-

tional rights while keeping us safe.

Mr. McKeon, a California Republi-

can, served in Congress 1993-

and as chairman of the House Armed

Services Committee 2011-15. Mr.

Schaerr, a former associate counsel

to President George H.W. Bush, is

general counsel to the Project for Pri-

vacy and Surveillance Accountability.

By Buck McKeon
And Gene Schaerr

DAVID KLEIN

Section 215 needs major

reforms to safeguard core

American liberties from

government overreach.

Boris Johnson Leads Westminster to a Waterloo Over Brexit

London

B

oris Johnson is finally facing
his Waterloo. As ABBA sang,
he couldn’t escape it if he
wanted to. The prime minister’s bat-
tleground won’t be on the road to
Brussels, as it was for Napoleon Bo-
naparte, but on the road that leads
through the voting booths and back
to the House of Commons. Yet while
his swagger may resemble Napo-
leon’s, his strategic position gives
him the battlefield advantages of
Wellington.
Napoleon could count on the loy-
alty of his guards; Mr. Johnson, less
so. His minority government is
pinned down in Parliament by a
grand alliance of anti-Brexit factions,
including the Conservative deserters
who blocked his deal with the Euro-
pean Union. Despite having secured
revised Brexit terms from Brussels in
his first 100 days in office, Mr. John-
son is all but certain to overshoot
the already delayed deadline of
Oct. 31.
Though Mr. Johnson averred six
weeks ago that he’d rather be
“dead in a ditch” than extend

Brexit negotiations, lawmakers

have forced him off the road, oblig-

ing him to request an extension

from Brussels, and twice prevent-

ing him from rallying new parlia-

mentary forces by calling a general

election. Jeremy Corbyn, the far-

left fanatic who leads the Labour

Party, insists that this delay and

obfuscation is for the nation’s

good. The British said much the

same to Napoleon when they exiled

him to the island of Elba. As Napo-

leon broke out and made a dash for

Brussels, so Mr. Johnson is now

trying to do the same.

On Thursday, Mr. Johnson an-

nounced that he will call for a general

election on Dec. 12.Reculer pour

mieux sauter:Retreat so as to advance

better, after winning a majority in the

House of Commons from a public that

has had enough of Brexit delay and

uncertainty. Mr. Johnson might have

lost most of the recent skirmishes, but

he has managed to do one better than

his predecessor, Theresa May, by

pushing the legislative foundations for

Brexit through the Commons.

The polls and public mood are in

Mr. Johnson’s favor. A late-Septem-

ber survey found that Mr. Corbyn is

the most unpopular leader of the op-

position in 45 years. One early Octo-

ber survey showed Mr. Johnson lead-

ing Mr. Corbyn 43% to 21%. Another

showed the Conservatives leading

Labour 38% to 23%, with 60% of

those who voted Leave in the 2016

Brexit referendum now supporting

the Conservatives.

Mr. Johnson also has the EU on

his side. Mrs. May was outgunned

for two years by an anti-Brexit EU

and the pro-Remain Parliament,

which rejected her deal three times.

Now, with Brexit uncertainty threat-

ening to disrupt a stagnating Euro-

zone economy, Mr. Johnson and the

Europeans are forming alliances of

necessity. The EU is willing to extend

the U.K.’s membership to Jan. 31, the

House of Commons’ new preferred

date. Mr. Johnson would rather the

extension be as short as possible,

perhaps only to Nov. 15. So does

France’s President Emmanuel Ma-

cron, who wants to get past Brexit

and get on with building the Euro-

pean superstate.

Down the road, the deal awaits

ratification only by the London Par-

liament. Ireland’s Leo Varadkar has

already endorsed it; that should pla-

cate House Speaker Nancy Pelosi,

who recently threatened to block a

U.S.-U.K. free-trade deal in the event

a hard border springs up between

Northern Ireland and the Irish Re-

public. But the length of that road

remains unclear while the EU leaders

haggle over the extension period.

And no European show is over until

Angela Merkel sings. Like Wellington

at Waterloo, Mr. Johnson awaits Ger-

man reinforcements to shift the bal-

anceofforcesinhisfavor.

The real obstacle to getting Brexit

over the line isn’t intra-European

differences. It’s Mr. Corbyn, who op-

posed the EU for decades as a capi-

talist conspiracy. Now, however, he

opposes Mr. Johnson’s deal, claiming

that it undermines the EU’s labor

and welfare laws. Apart from placing

party antagonism over the national

interest, Mr. Corbyn fears a general

election that will expose Labour’s di-

visions over Brexit and culminate in

a battering for his party.

Mr. Johnson, meanwhile, is a posh

populist and expert tickler of the na-

tional funny bone. If he can get to

the voting booths—with or, as seems

more likely, without the House of

Commons’ approval of his Brexit

deal—then he has a strong chance of

returning to Westminster with a ma-

jority government. Mr. Corbyn can

slow his advance. On Friday Labour

whips were erecting a new set of

specious roadblocks, and ordering

Labour members of Parliament ei-

ther to abstain or oppose in the vote

for a general election. But they won’t

be able to delay the election forever.

Mr. Johnson’s task is formidable.

Labour will do its utmost to thwart

him, the Remainers will continue to

demand a second referendum, and

the election campaign is sure to be a

fight to the death. But then Brexit al-

ways was going to be, as Wellington

said after Waterloo, the “nearest-run

thing you ever saw in your life.”

Mr. Green is life & arts editor of

the Spectator (US).

By Dominic Green

The polls are in the prime

minister’s favor, but getting

Britain out of the EU will

be a close-run thing.

OPINION

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Charter Schools Are an Opportunity for Impact Investors

W

ith more than three million
students in charter schools
nationwide, and an esti-
mated five million families who
would send their child to a charter if
a spot were available, why aren’t
many more of them opening? One
reason is the higher cost of capital
they bear compared with traditional
public schools. While both types of
school receive public funding for op-
erating expenses, charter schools
cannot issue general-obligation
bonds to purchase or construct their
properties. That forces charter
schools to find facilities, and the
funds to renovate or build them, on
the open market.
Charter schools enter the market
at a distinct disadvantage. When
they do find a site and draw up plans
for a new school building, the orga-
nizers often find interest rates far

steeper than those enjoyed by tradi-

tional public schools—about 1.5 per-

centage points higher. That’s because

teachers unions and other advocacy

groups dissuade school districts from

sharing the proceeds of their bonds

or guaranteeing charter-school

bonds. The extra interest charter

schools pay consumes dollars they

could otherwise spend to hire more

teachers, increase salaries and buy

resources for students.

Yet compared with many real-es-

tate investments, charter schools are

an extremely safe bet. A 2011 report

on charter-school loan performance

from Ernst & Young’s Quantitative

Economics and Statistics Practice as-

sessed 430 outstanding and paid-off

loans totaling $1.2 billion. Only five

loans, which amounted to 1% of the

set in dollar terms, ended in foreclo-

sure. And just 0.2% of the total loan

amount was reported as being writ-

ten off. Among outstanding loans,

only eight (3.6%) had been delin-

quent for any period of more than

60 days.

This strong performance makes

charter schools an ideal opportunity

for impact investing. Impact inves-

tors are those who aim to “do well

by doing good”—i.e., generate a

measurable social benefit along with

a commensurate financial return.

While impact investors are al-

ready funding auxiliary features of

education like tutoring programs,

few have gotten involved in core ac-

tivities like helping schools buy their

physical plants. Historically, supple-

mental funding for schools has come

in the form of donations and grants.

Yet supporters of charter schools

could have a greater impact by mak-

ing larger, lower-cost loans that

would allow the schools’ organizers

to finance capital expenditures at

lower rates of interest than are

available on the open market.

Low-interest investors would help

charter schools spread and flourish

in the long term. The infusion of af-

fordable capital would make it possi-

ble to extend spots to many of the

students waiting to enroll in charter

schools. Millions of dollars in interest

could be saved and reinvested to pay

teachers and spend on student learn-

ing—more spending in the classroom,

rather than on it. The discrepancy

between charter schools’ high cost of

capital and their demonstrated sta-

bility and low default rate is exactly

the sort of gap impact investors

should naturally seek to fill.

Investors in social causes have

made valuable contributions in re-

cent decades to fields like public

health that had long been occupied

exclusively by nonprofits, but too

many investors seem to focus more

on improving their public image in-

stead of finding the areas with the

greatest potential impact. This may

have dissuaded some from funding

charter schools, which have lost

some of their luster among political

liberals because of the supposed

threat they pose to traditional public

schools.

Charter schools are an untapped

opportunity for impact investors. In-

vestors in charter schools have the

satisfaction of knowing that their in-

vestments would finance expenses

that donors can’t cover with gifts,

and can rest comfortably in the

knowledge that their investments

are very likely to pay off. What’s

more, they can help meet a goal that

should be beyond the divisiveness of

politics: better education for Amer-

ica’s children.

Mr. Medema is managing director

for the Charter School Facility Cen-

ter at the National Alliance for Pub-

lic Charter Schools.

By Mark Medema

High interest rates are a

barrier to buying new

facilities, even though such

loans have proved a safe bet.

Rep. Al Green (D., Texas) question-

ing CEO Mark Zuckerberg at a House

Financial Services Committee hearing

titled “An Examination of Facebook

and Its Impact on the Financial Ser-

vices and Housing Sectors,” Oct. 23:

Green: Is it true that the Libra As-

sociation oversees the Libra project?

Zuckerberg: Congressman, yes.

Green: And is it true that global

corporations make up the associa-

tion?

Zuckerberg: Congressman, the as-

sociation is made of today 21 compa-

nies and nonprofit organizations as

well.

Green: Of the 21, how many are

headed by women?

Zuckerberg: Congressman, I do

not know the answer to that off the

top of my head, but I can get it for

you.

Green: Well, I believe you can get

it, Mr. Zuckerberg. But one would as-

sume that you would know who

heads these corporations that are go-

ing to be running this global com-

pany. How many of them are minori-

ties, Mr. Zuckerberg?

Zuckerberg: Congressman, I do

not know off the top of my head.

Green: Are there any members of

the LGBTQ-plus community associ-

ated with this association, Mr. Zuck-

erberg?

Zuckerberg: Congressman, I don’t

know the answer—

Green: Who acknowledge—there

are many people who acknowledge

that they are part of the community.

Zuckerberg: Sorry?

Green: You do not—you do not

know. Mr. Zuckerberg, is it true that

the overwhelming majority of per-

sons associated with this endeavor

are white men?...

The public needs to know whether

this is an organization that is truly

diverse or whether it is an organiza-

tion that is owned and operated by a

small group of persons, all of whom

have similar characteristics, for want

of better terminology.

Notable &Quotable: ‘Similar Characteristics’