The USA Freedom Act: is it really a solution to government overreach?

After the National Security Agency lost the authority to collect telephone records of Americans on Sunday, Tuesday saw President Obama sign a new bill into law which bans this assemblage of data.

Or, rather, it’s now just not as easy.

After provisions in the Patriot Act expired on May 31st, the United Senate took a couple of days before passing the bill.

The legislation, called the USA Freedom Act, prohibits the storing of phone metadata at the NSA and other intelligence agencies, a scheme revealed by Edward Snowden in 2013. The reform stipulates all records are to remain under the control of relevant phone companies whereby federal officials will need specific, “targeted warrants” to seize documents.

Kentucky battle lines

At the beginning of May, the Second Circuit Court of Appeals found the Patriot Act’s collection of this phone metadata as unlawful, acting without the authorization of Congress. In his opinion, Judge Gerard Lynch condemned the federal government for ‘effectively [arguing] that there is only one enormous “antiterrorism” investigation, and that any records that might ever be of use…are relevant to the overall counterterrorism effort.’

Despite the government unlawful activity, there were some in Washington who were not happy with the expiration of provisions.

Leading the security hawks in the Senate, Majority Leader Mitch McConnell (R-KY) tried in earnest to have his colleagues vote for a five-year renewal of Section 215, continuing the surveillance status quo, despite the court ruling.

“We shouldn’t be disarming unilaterally as our enemies grow more sophisticated and aggressive,” Mr. McConnell told his peers.

Yet even within his own party many disagreed with the Patriot Act’s free pass against civil liberties.

The junior Kentucky Senator and Republican presidential candidate Rand Paul had his own reservations about the USA Freedom Act, but because he felt it hadn’t gone far enough.

Addressing the Senate before the expiration, Mr. Paul said:

Currently, my understanding is the NSA is at the phone company sucking up the phone records and sending them to Utah. My concern is under the new program, that the records will still be sucked up into NSA computers but the computers will be at the phone company, not in Utah.

Libertarian-leaning Paul has made government surveillance one of the centerpieces of his campaign. Despite efforts by his fellow GOP senators, Paul refused to agree to extend the crucial surveillance authorities claiming those in Congress acting in such a manner were employing fear tactics because ‘they want you to […] give up your liberty’.

The ‘Balancing Act’?

The Freedom Act, proposed by the President over a year ago, saw a rare triumph for bilateral support across not just congressional party lines but also branches where the Congress has shown itself as hostile to Obama’s White House.

“This is the kind of rigorous oversight and, essentially, a rules architecture that the president does believe is important,” said White House Press Secretary Josh Earnest. “And that is materially different than the program that he inherited.”

Yet there is still worry between the two sides outside of Capitol Hill. Those in the surveillance community have conveyed their worry the ability to protect against foreign and domestic threats has been hindered, citing new restrictive measures. But many approve with Senator Paul’s interpretation that it continues excessive infringement of civil liberties and privacy.

Jameel Jaffer, deputy legal director at the American Civil Liberties Union (ACLU), agreed the new policy was a step in the right direction, albeit a very small one. He said Mr. Obama had done little to convince those against the NSA’s oversight that enough had been done to assuage public concern. “Obama has been presented with this choice: are you going to defend these programs or are you going to change them?” he said.

Will it make a difference?

That is to be decided.

While en-masse collections will be banned, intelligence agencies’ need for targeted warrants will still come from the comparably unchecked Foreign Intelligence Surveillance Court (FISA Court). Snowden’s revelations in 2013 showed they permitted the collection of Verizon phone data without counter-arguments.

And while the new bill will allow for an amicus curiae, it is believed this measure is little more than a novelty, invited when the court deems it a necessity.

A so-called period over the next six months, supposedly for transition between the two Acts, has added further complications. Senator Paul’s grandstanding over the weekend, allowing the provision to expire, left a black hole in intelligence procedures, encouraging the government to ask FISA to reinstate the currently illegal act.

Senator Ron Wyden (D-OR) of the Senate Intelligence Committee told the press:

I see no reason for the executive branch to restart bulk collection, even for a few months, and I urge them not to attempt to do so. This illegal dragnet surveillance violated Americans’ rights for 14 years without making our country any safer, and the administration should leave it on the ash heap of history.

Critics of the government’s actions over this juncture are challenging FISA to appoint an amicus, with others hoping further court action will stop it altogether.

However, the USA Freedom Act has begun to change the controversial status quo. FISA will no longer be protected by the Patriot Act’s veil of secrecy. Reasoning and the rulings for major decisions are now required to be published, taking a significant step towards transparency, as well as giving Americans the chance to take back their privacy from the clandestine arm of the US government.


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