President Barack Obama has signed the USA Freedom Act, which changes how the NSA spies on Americans citizens. So what are the changes and are there constitutional implications?
In the end, Senate majority leader Mitch McConnell reluctantly agreed to support the House-approved USA Freedom Act, which replaces key provisions of the Patriot Act. Despite efforts by Senator Rand Paul to delay the act, and efforts by McConnell and others to amend it in the Senate, the act passed in the Senate with 67 yes votes.
McConnell remained critical of the Freedom Act on Tuesday as it moved toward finality. “This is a significant weakening of the tools that were put in place in the wake of 9/11 to protect the country,” McConnell said. “I think Congress is misreading the public mood if they think Americans are concerned about the privacy implications.
On the surface, the USA Freedom Act curtails, but doesn’t end, the government’s ability to get phone metadata records of American citizens and others. After a six-month transition period, the USA Freedom Act shifts the burden of keeping the phone records to private companies; and the NSA must get individualized permissions from the secret FISA court to get relevant, targeted information from a phone company storing the records. It also provides for an adversarial advocate in the secret FISA court and the release of certain FISA court decisions publicly. The Freedom Act also restores a roving wiretap provision and a lone-wolf provision from the Patriot Act.
Surveillance will certainly continue under other parts of the act and under other government programs designed to combat terrorism. But the fight in Congress may just be getting started.
The New York Times says that Senator Mike Lee and Senator Pat Leahy are moving on to targeting the government program that allows e-mails older than six months to be read by investigators. Congressional reformers may also seek to limit the Foreign Intelligence Surveillance Act.
And there is debate in the House and Senate about other spying provisions.
“Some of us don’t think USA Freedom sufficiently ends bulk metadata collection. In fact, [the government] will still contend after the act passes that they can bulk collect all of the websites and emails and all that content,” said Representative Thomas Massie. “Read it closely, it’s only about your phone calls.”
"I think Ben Franklin would've been proud of this outcome," said Senator Martin Heinrich, a co-sponsor of the USA Freedom Act. "I think our framers really understood the importance of this underlying tension ... they understood the dynamic of protecting security and liberty at the same time. Today we struck a blow for finding that balance that will truly accomplish both of those things."
The six-month transition period for moving the phone records back to private parties is also important, because there is already one adverse federal court decision against the Patriot Act, and two other federal court decisions are pending.
The controversy over the Patriot Act’s Section 215 erupted in 2013 when former NSA analyst Edward Snowden disclosed a massive government system to harvest Americans’ phone records, which is authorized by a secret court. The NSA system used blanket court orders, and not specific search warrants, to compel phone companies to hand over customer metadata to the NSA.
The phone metadata contain basic phone number information, and not the content of calls or the names of callers. But that in itself, critics say, violates the First and Fourth Amendment rights of Americans since the information isn’t obtained via the warrant process.
With reservations, Snowden did comment on the act’s passage on Tuesday from Russia. “For the first time in recent history we found that despite the claims of government, the public made the final decision and that is a radical change that we should seize on, we should value and we should push further,” he said. “If we collect everything, we understand nothing. … We’re spending resources for no benefit in terms of public safety and a real cost in terms of freedom and liberty.”
