For the first time since the USA PATRIOT Act was signed into law in the wake of the 9/11 attacks, Congress has scaled back the scope of its provisions. On June 2, 2015, Congress enacted and President Barack Obama signed the USA FREEDOM Act of 2015, which renewed several of the USA PATRIOT Act’s provisions but added restraints to government surveillance activities, particularly the controversial bulk collection of telephone metadata. In the month since Congress’ action, however, debate has continued about whether the USA FREEDOM Act actually curtailed government surveillance programs or whether it is mere window dressing.
The USA PATRIOT Act
The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act was a response to perceived weaknesses in the government’s ability to investigate and identify terrorists and terrorist activity following 9/11. It amended the pre-existing Foreign Intelligence Surveillance Act (FISA), which regulated the gathering of foreign intelligence. The USA PATRIOT Act modified FISA by expanding the definition of terrorist activity and lowering the threshold for launching a terrorist-related investigation. It also expanded a section of the law covering “business records” to allow the government to seek an order requiring the production of “any tangible things (including books, records, papers, documents, and other items). …”
The government must obtain the court order to access these kinds of records through a secret court—created by FISA and continued by the USA PATRIOT Act—known as the Foreign Intelligence Surveillance Court (FISC). Unlike most other courts in the country, the FISC operates in near-complete secrecy. Proceedings before the court typically involve only the government’s representatives and the judge—the person or business whose information is being sought does not participate and often does not know that the order was obtained. After learning about the order, the person or business can challenge it, but is legally prevented from discussing it with anyone. Reportedly, 99% of surveillance orders requested by the government are approved.
The FISC approved one such order in April 2013 requiring Verizon to turn over telephone metadata about all calls made through its cellular and landline networks, both those calls made within the U.S. and those between the U.S. and abroad. The metadata includes the phone numbers making and receiving the call, the length of the call, and routing information that can be used to provide a general location of the caller and recipient. The National Security Agency (NSA) collected the information and maintained it in a massive database. When the NSA came to believe that a particular phone number merited investigation, the database was searched and the metadata was used to reveal all the phone numbers connected with the target number—the numbers that the target called and those that called the target—as well as the length of the conversations and where the conversations came from. All this was permitted because the metadata was considered a “tangible thing” under the USA PATRIOT Act.
It would have remained secret except for the wide-ranging and controversial disclosure of this order and other secret NSA information by Edward Snowden in summer 2013. The disclosure created a firestorm about the program, resulting in congressional hearings, government agency defenses and back-pedaling, and unprecedented media attention. The uproar continued through 2013 and 2014 and served as the framework for the debate over the 2015 USA FREEDOM Act.
The USA FREEDOM Act
The USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring) Act again renewed the business records provision of FISA, but with several important restrictions that were included largely in response to the telephone metadata collection program disclosure. Key among the restrictions is that the NSA will no longer be collecting the data and maintaining the database; instead, the data will be maintained by the telephone companies. In order to initiate a search of those records, the government will need to articulate to the FISC that there is “reasonable suspicion” that a particular person, address, or phone number is relevant to an authorized terrorism investigation. The search is also limited to two “hops”: The first is the targeted number, and the second is connections to the targeted number. Under the NSA program, there was no limit on the number of connected “hops” that could be searched.
The act also somewhat reduces the level of secrecy associated with the FISC, in requiring that some opinions be declassified and others summarized when declassification isn’t possible. The FISC must designate “friends of the court” to advocate the public’s interest, and private companies are allowed to report on the number of FISC orders they receive. There are also increased requirements for the government to publicly report various statistics about FISC court orders for call detail records, although not specific information such as the targets of the searches or holders of the information.
Reactions to the USA FREEDOM Act
In the weeks leading up to its passage, much of the debate and controversy surrounding the act focused on whether the collection of metadata was a critical part of the fight against terrorism or a failed or ineffective means of identifying and/or protecting against terrorist plots. Even as a compromise between such positions, the act still generated controversy, so much so that delays over its enactment allowed the USA PATRIOT Act’s business records provision to expire for a brief period. However, in the immediate aftermath of its passage (by a 67-32 vote), the USA FREEDOM Act was widely praised. President Obama tweeted that the act “protects civil liberties and our national security.” The American Library Association (ALA) applauded the act as serving “notice that libraries, tech companies, civil liberties advocates of every kind and hundreds of millions of ordinary Americans want the rule of law and their privacy restored.” In an editorial, Bloomberg View suggested that with the passage of the act, “America finally moves beyond Sept. 11.”
However, the weeks since June 2 have seen a more measured and increasingly negative view of the real impact of the act. Several commentators have argued that the NSA’s bulk telephone collection program is only one minor NSA surveillance program and that too many others run by the government remain intact. Freedom Watch’s founder Larry Klayman called the act a “sham,” arguing that the NSA—and the Central Intelligence Agency (CIA)—will “do as they please” in surveillance activities. InfoWorld’s security columnist Roger A. Grimes argued that under the USA FREEDOM Act, only a “small part of a single NSA data collection program was barely modified,” while “nearly every other NSA program is intact.” Other commentators have described the act as “Orwellian,” “Inscrutable,” and “a Virtual Scam.”
It will be difficult to gauge the full impact of the USA FREEDOM Act. Notwithstanding the Snowden disclosures and the act’s transparency provisions, most aspects of U.S. surveillance activity remain shrouded in secrecy. Some level of secrecy is necessary, but the catch-22 is that it is difficult to tell how much secrecy is necessary when everything is a secret.
The late comedian George Carlin once compared different state license plate slogans by saying that “the truth lies” somewhere between New Hampshire’s “Live Free or Die” and Idaho’s “Famous Potatoes.” It is likely that somewhere between the “restoration of the rule of law” and “a virtual scam” lies the truth about the USA FREEDOM Act.