It’s official: America’s spy agencies are not allowed to collect the communications data of Americans without a warrant. With a two-thirds majority, the US Senate amended the law on Tuesday to prohibit this specifically.
Since Edward Snowden’s revelations two years ago, efforts had been underway in Congress to either make the spying program official or to rein it in. While the White House, which oversees the spy agencies, preferred the former option, legislators had second thoughts.
These included Wisconsin Representative James Sensenbrenner, one of the main authors of the USA PATRIOT Act in the weeks following 9/11. Section 215, which contained the most controversial provisions of that act, was set to expire seven times since 2001, and mostly it was Sensenbrenner who made sure it was renewed.
The author of the Patriot Act was troubled by what it was used for
But in June 2013, when he heard via the Snowden reports that the FBI and NSA had been using Section 215 to justify the bulk collection of Americans’ phone records, he changed his mind. “As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation,” the Republican congressman said.
Sensenbrenner thus set about drafting the revision that finally passed on Tuesday. He gave it another snappy title: the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, or USA FREEDOM Act.
What’s new
The Freedom Act says that, starting 180 days after its enactment…
- phone companies, not the government, are to collect communication records;
- the government may look at the records only of the individuals it identifies;
- the government must show that it has a reasonable suspicion of these individuals;
- at the secret court that issues the warrants, an advocate for civil liberties should be present; and
- the records must be destroyed after 180 days
…which is the system we thought we had, until Snowden showed us otherwise.
The Freedom Act does contain an interesting new loophole, namely that the attorney general may disregard all of these provisions in the event of an emergency. It also renews the rest of Section 215 until December 2019.
Three candidates for president voted against the new law
It’s a compromise, and civil-liberties groups such as the Electronic Frontier Foundation welcome it, as does the White House. Still, one-third of the Senate is not happy with the changes. Three of the candidates for president next year voted against the act.
Florida Senator Marco Rubio, a Republican, preferred the Patriot Act. He perceived a “politically motivated misinformation campaign” that has “now left the American people less safe than we’ve been at any point since the 9/11 attacks.”
Vermont Senator Bernie Sanders, an independent who is running as a Democrat, voted no for the opposite reason. “This bill is an improvement over the USA Patriot Act, but there are still too many opportunities for the government to collect information on innocent people,” he said.
Kentucky Senator Rand Paul, a Republican, organized an 11-hour filibuster on May 20 to prevent the renewal of Section 215. During a half-hour encore on Sunday, he argued against the necessity of the entire Patriot Act, saying there was no evidence it had been effective. This second speech, as intended, delayed the vote on the Freedom Act long enough to allow Section 215 to expire for two days.
A fourth presidential candidate, Republican Senator Ted Cruz from Texas, joined in Paul’s May 20 filibuster, arguing against general surveillance but in favor of the Freedom Act.
Paul’s comments on May 31 raised the ire of Arizona Senator John McCain. “Isn’t this program as critical as it’s ever been since its inception, given the fact that the Middle East is literally on fire and we are losing everywhere?” McCain asked, without explaining how spying on Americans would defeat the Islamic State.
The real story
All of this debating has restored some health to America’s anemic democracy, but it’s distracted attention from an important point: that Section 215 never explicitly allowed the NSA’s blanket collection of data on Americans to begin with. It would take a very broad reading to even think that. The US Circuit Court of Appeals — one level below the Supreme Court — pointed this out in the case of ACLU v. Clapper three weeks ago.
Clapper here would be James Clapper, the director of national intelligence, who lied to Congress on camera and under oath in 2013, when he said that masses of data were not being collected on US citizens. Clapper remains in charge of the FBI, NSA and all the other spy agencies, with the full backing of Barack Obama, despite various calls for his resignation and/or incarceration. Civil libertarians, investigative journalists and Rand Paul will continue to have their hands full keeping Clapper, um, under surveillance.
For the spy agencies, when one window closes, another opens. Yesterday, the Associated Press reported its discovery that the FBI has been operating its own fleet of domestic surveillance airplanes, disguised to appear to belong to fake companies. The AP tracked more than 100 flights over the past month, flying in slow circles above Boston, Chicago, Dallas, Houston, Minneapolis, Phoenix, Seattle, southern California, and Washington, DC. The news agency suspects the FBI of collecting electronic signals, which the FBI denies.
