There is understandable confusion over whether the USA Freedom Act, the law enacted this week to end the National Security Agency's bulk collection of phone records, is a victory for Americans’ civil liberties. After all, the bill was supported by the Director of National Intelligence as well as many privacy advocates. When ideological opponents find themselves on the same side, whose cause has won?
The law certainly marks a shift in the post-9/11 trend of dramatic expansions in surveillance powers. For decades before the attacks, the laws governing domestic surveillance required intelligence agencies to have some individualized, fact-based reason to suspect wrongdoing before spying on Americans. This requirement was a response to the intelligence abuses of the early Cold War, as revealed by the Senate’s Church Committee. After 9/11, however, the principle of individualized suspicion was systematically excised from the law.
The NSA’s bulk collection program is a case in point. Before the Patriot Act, the government could collect Americans’ business records only if the subject of the records was a foreign power or its agent – a spy, for example. The Patriot Act removed the requirement to show anything about the subject of the records. Instead, the government needed to show only that the records were “relevant” to an investigation. The secret FISA Court infamously interpreted this standard to permit the programmatic collection of all Americans’ records – the very opposite of an individualized, fact-based approach.
"If intelligence officials are correct in their calculus, USA Freedom may prove to be a Pyrrhic victory."'
The USA Freedom Act will end the bulk collection of phone metadata and prohibit similar programs for any type of business records under foreign intelligence collection authorities. For phone records, the government may obtain metadata on an ongoing basis only for suspected terrorists and those in contact with them. For other types of records, the government must tie its request for records to a “specific selection term,” such as a person, address, or account.
Given the surge in surveillance since 9/11, the USA Freedom Act’s imposition of constraints on collection is historic. Indeed, the USA Freedom Act is the most significant limitation on foreign intelligence surveillance since the 1970s. If faithfully implemented – a critical caveat, to be sure – the law will meaningfully curtail the overbroad collection of business records.
Even under USA Freedom, however, the government is still able to pull in a great deal of information about innocent Americans. Needless to say, not everyone in contact with a suspected terrorist is guilty of a crime; even terrorists call for pizza delivery. Intelligence officials also may need to obtain records – like flight manifests – that include information about multiple people, most of whom have nothing to do with terrorism.
Some of this “overcollection” may be inevitable, but its effects could be mitigated. For instance, agencies could be given a short period of time to identify information relevant to actual suspects, after which they would have to destroy any remaining information. USA Freedom fails to impose such limits.
More fundamentally, bulk collection of business records is only one of the many intelligence activities that abandoned the individualized suspicion approach after 9/11. Until a few years ago, if the NSA, acting within the United States, wished to obtain communications between Americans and foreigners, it had to convince the FISA Court that the individual target was a foreign power or its agent. Today, under Section 702 of the FISA Amendments Act, the NSA may target any foreigner overseas and collect his or her communications with Americans without obtaining any individualized court order. Under Executive Order 12333, which governs the NSA’s activities when it conducts surveillance overseas, the standards are even more lax.
The result is mass surveillance programs that make the phone metadata program seem dainty in comparison. Even though these programs are nominally targeted at foreigners, they “incidentally” sweep in massive amounts of Americans’ data, including the content of calls, e-mails, text messages, and video chats. Limits on keeping and using such information are weak and riddled with exceptions. Moreover, foreign targets are not limited to suspected terrorists or even agents of foreign powers. As the Obama administration recently acknowledged, foreigners have privacy rights too, and the ability to eavesdrop on any foreigner overseas is an indefensible violation of those rights.
Intelligence officials almost certainly supported USA Freedom because they hoped it would relieve the post-Snowden pressure for reform. Their likely long-term goal is to avoid changes to Section 702, Executive Order 12333, and the many other authorities that permit intelligence collection without any individualized showing of wrongdoing. Privacy advocates who supported USA Freedom did so because they saw it as the first skirmish in a long battle to rein in surveillance authorities. Their eye is on the prize: a return to the principle of individualized suspicion as the basis for surveillance.
If intelligence officials are correct in their calculus, USA Freedom may prove to be a Pyrrhic victory. But if the law clears the way for further reforms across the full range of surveillance programs, history will vindicate the privacy advocates who supported it. The answer to what USA Freedom means for our liberties lies, not in the text of the law, but in the unwritten story of what happens next.
Elizabeth Goitein is the Co-Director of the Brennan Center for Justice’s Liberty and National Security Program.