Lessons of the USA freedom act

The US Congress last week overcame a political logjam and passed the USA Freedom Act, paving the way for the first meaningful surveillance reform since 9/11.

The act makes several changes to the law, most notably to Section 215 of the USA Patriot Act. That provision had provided legal cover for the NSA’s bulk collection of metadata from all telephone calls made in the United States.(Metadata describes the number a person calls, how long the call lasts, and other identifying information.) Under the act, those records will now remain in the hands of the phone companies, and the government will need a court order to access them.

The USA Freedom Act provides important lessons for both US surveillance policy and the democratic process itself.

The act illustrates just how destructive excessive secrecy has been to the rule of law. Until 2013, the Section 215 programme was unknown to most members of Congress and to the US public.

Americans had no idea how much the law had been stretched by a combination of secret legal interpretations by the executive branch and secret rulings by the Foreign Intelligence Surveillance Court (FISC) adopting those interpretations.

Snowden revelations

That all changed in June 2013, not because of action by any of the three branches of government, but rather as a result of former NSA contractor, Edward Snowden, who revealed a vast network of secret surveillance programmes, including the bulk telephony metadata collection programme.

Had it not been for Snowden, Congress would almost surely have reauthorised Section 215 before it expired on June 1, 2015, as it had done seven times in the past. Mass surveillance of Americans’ calling records would have continued unchanged and unchecked.

The Snowden revelations not only generated meaningful public debate, but also revived the judiciary’s essential role in safeguarding civil liberties. The revelations allowed plaintiffs to sue over the bulk collection of phone records by enabling them to show that their records were, in fact, being collected – a fact that the government had never admitted and that could not have been proven without the secret government documents that Snowden made public.

Thus far, two courts have declared the bulk telephony metadata collection programme invalid. Most recently, the US Court of Appeals for the Second Circuit in New York rejected the argument that when Congress allowed the government to collect records “relevant to an authorised investigation” it was authorising the collection of the record of every call made in the US on the theory that those call records might one day be relevant to an actual investigation.

Surveillance reformation

The USA Freedom Act, however, is only the beginning of meaningful surveillance reform.

The government continues to collect vast amounts of data under other legal authorities, principally Section 702 of the FISA Amendments Act of 2008 (which covers communications between the US and overseas) and Executive Order 12333 issued in 1981 (which covers communications outside the US).

The USA Freedom Act does not affect these other authorities or the surveillance programmes conducted under them. Those programmes, moreover, not only collect metadata (as the Section 215 programme did), but also content, including from telephone and internet communications.

While the scope of information collected under Section 702 and Executive Order 12333 is vaster than under the Section 215 programme, the former could prove more difficult to reform.

Collection under Section 702 and Executive Order 12333 is premised on the theory that the targets are foreign nationals outside the US and, as such, are not covered by the Fourth Amendment’s protections against warrantless surveillance.

Global right to privacy

The notion that privacy rights extend only to a country’s citizens or within its borders is out of sync with emerging human rights norms that posit a global right to privacy.

It also assumes that US citizens’ private information is not being collected. But, in fact, US citizens’ communications are “incidentally” collected in the process of gathering foreigners’ data.

One important test will be in December 2017, when Section 702 is scheduled to expire. Unless more limits are placed on collection under Section 702, the USA Freedom Act will look less like a landmark victory for privacy protection than a temporary aberration from an otherwise continuous expansion of surveillance power.

Moving into these future debates, we must not forget what Snowden has taught us: Unless there is more transparency about what the intelligence agencies are actually doing, the prospects for reform will be dim. A system of checks and balances can function only when Congress, the courts, and the public, have sufficient information to participate meaningfully.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America’s New Global Detention System.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.