Issue in Focus
In the ongoing debate over how best to protect the nation from security threats like terrorism, while also protecting individuals’ civil liberties there has been a great deal of confusion about the USA Freedom Act, a bill that Congress passed and the president signed into law earlier this year. As one of the lead sponsors of the USA Freedom Act in the Senate, I’d like to clarify what exactly the law does and how it affects the delicate balance between security and privacy.
Before the USA Freedom Act became law, the National Security Agency (NSA) collected all the metadata (a business record of who called who and for how long) for almost every domestic landline phone call made in America. And they did it without a warrant.
For most of the metadata program’s life, intelligence officials could search the NSA’s massive database whenever they wanted. But for the last few years, any agency that wanted access to the NSA’s database had to get a court order from a special intelligence court to do so.
Under the USA Freedom Act, the NSA is no longer allowed to vacuum up all that metadata, a practice that violates the Fourth Amendment rights of all Americans, according to a federal court’s recent ruling.
Under the USA Freedom Act, U.S. intelligence agencies must now go to that same special intelligence court, get a court order for a specific target to be searched, and then present that order to U.S. phone companies. The phone companies are then obligated to help agencies locate all relevant metadata for the suspected target, including new types of metadata, like cell phone records, which companies were not obligated to provide prior to the USA Freedom Act becoming law.
Now it is true that phone companies don’t always keep their customers’ metadata as long as the NSA kept their warrantless collection. Whereas the NSA kept their landline phone data for five years, most phone companies keep it for two years (though phone companies are required by the Federal Communications Commission to keep their data for only 18 months).
So before USA Freedom, intelligence officials did have access to three additional years of metadata. But we know from press reports that the NSA’s metadata was limited mostly to domestic landline calls, data that is of limited value, according to recent congressional testimony from intelligence officials.
In fact, when the NSA was forced to stop its warrantless collection program, the federal government did not even ask for access to the old data, even though nothing in the USA Freedom Act prevented the agency from getting it.
The proponents of the NSA’s warrantless metadata collection program also vastly exaggerate its effectiveness. The program had expired just four days before the San Bernardino attacks, so if it was so essential why did it not stop this attack?
The USA Freedom Act is what the Patriot Act was supposed to be, and while it’s not perfect, it rectifies the Administration’s heavy-handed application of our surveillance apparatus.