The USA Freedom Act puts an end to the National Security Agency's warrantless bulk collection of phone records. But given today's political realities, the bill that President Obama signed into law on Tuesday is still a big win for the national security community.
While the new law is an important step in intelligence reform – both in substance and as a possible harbinger of things to come – it does nothing to restrict the NSA’s ability to conduct a wide range of controversial surveillance activities.
For example, USA Freedom does not address the NSA’s controversial PRISM program, which targets Internet communications of non-US citizens but may unintentionally allow access to the communications of US citizens under certain circumstances. As one American Civil Liberties Union lawyer exhorted: “No one should mistake this bill for comprehensive reform. The bill leaves many of the government’s most intrusive and overbroad surveillance powers untouched.”
Still, the law is the first to curtail US surveillance powers since 9/11 and, as such, marks an important first step in intelligence reform.
USA Freedom technically closes the chapter on NSA bulk collection of domestic phone metadata — including phone numbers called as well as dates, times, and the duration of calls. However, the security agency will still be able – with a warrant – to query metadata held by private companies. Moreover, the new law does nothing to reign in other NSA surveillance programs of greater significance.
The NSA’s bulk metadata collection program was one of several secret programs put into place post-9/11 to address perceived intelligence shortcomings. Under the program, NSA collected metadata without a warrant upon a simple showing that the data was “relevant” to a national security investigation.
When the NSA created the program, it took the view that no warrant is required to collect metadata. The agency relied on Smith v. Maryland, a 1979 Supreme Court case, to argue that metadata is not constitutionally protected. In Smith, the court ruled that a robbery suspect had no reasonable expectation of privacy in the numbers dialed from his phone. But it’s a far cry from Smith to argue that it is constitutionally permissible for NSA to engage in the long-term, bulk collection, storage, and analysis of telephone metadata.
While the concept of metadata may not have changed much since 1979, what that metadata can tell the government about individual citizens has changed.
Calling patterns “can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations,” said Edward Felten, a Princeton computer scientist recently appointed deputy US chief technology officer.
This has led many to call into question NSA’s continued reliance on Smith to justify the lawfulness of its bulk metadata collection program. Congress' action effectively short-circuits legal challenges to the constitutionality of the metadata collection program that had been working their way through the federal courts, but NSA’s bulk collection program will continue to be judged in the court of public opinion.
After former NSA contractor Edward Snowden released classified documents revealing the existence of this and other secret NSA surveillance programs, Mr. Obama responded to the public outcry by putting together a five-member expert panel to study possible intelligence reforms. The panel concluded – after a review of confidential information — that the information gleaned from metadata “was not essential to preventing [terrorist] attacks and could readily have been obtained in a timely manner using conventional [court] orders.”
In keeping with the recommendations of that panel, the USA Freedom Act ends NSA’s bulk collection of metadata and requires it to obtain a warrant before accessing call data in the hands of private companies.
Security hawks who opposed the new law worry that it will negatively impact the agency's ability to investigate terrorist activity or prevent attacks. They are concerned that not only could a warrant requirement be cumbersome, but also that the NSA will need to jump through administrative and technical hoops to access the telephone metadata held by private parties.
While USA Freedom may make NSA’s job marginally more difficult, some of those difficulties will be minimized as NSA streamlines the procedures necessary to access metadata held by private parties. In short, the NSA will adapt – quickly.
As public debate over intelligence reform continues in the coming weeks and months, the important question will not be whether other proposed reforms make NSA’s job more difficult. In fact, they may. The real question is whether it is worth paying that price in order to secure our freedom and privacy in this age of advanced information technology.
Melanie Teplinsky teaches information privacy law at the American University Washington College of Law as an adjunct professor. She started her career in cybersecurity in 1991 as an analyst at the National Security Agency.