Here’s the fundamental point about the new USA Freedom Act, successor to the post-9/11 Patriot Act: It doesn’t appear to change the effort to head off terrorism all that much and, despite the protests of Senate Majority Leader Mitch McConnell, R-Ky., and his backers, it passed both chambers with the support of Democrats, Republicans, civil libertarians, telecommunications companies and, notably, intelligence officials. That surely counts for something.
Under the new law, three key sections of the Patriot Act will be restored and extended through 2019. Those sections expired Sunday when Congress failed to renew that controversial law, as McConnell wanted.
What does change is the section of the law that allowed the National Security Agency to collect metadata on Americans’ phone calls, including the telephone numbers and the time and duration of calls. Instead, the new law creates a six-month transition to a new program, in which that information would be retained by the companies involved, not the government, but could be searched on a case-by-case basis under a federal court order.
The change came as a result of publicity generated by the disclosure of the surveillance program by Edward Snowden, a former contractor with the NSA. Two years ago, he leaked information about the agency’s secret surveillance and fled the country.
The ensuing debate was appropriately loud and passionate. The main problems with the program were determined to be its secrecy and lack of sufficient oversight to ensure that the NSA was not overstepping its legal bounds. The collection of metadata, itself, was also troubling, even though the NSA wasn’t listening to the content of calls. Rather the agency was analyzing the data and attempting to match it with known or suspected terrorist activities. In that, there may be value. The sifting of data can still take place, as long as the NSA gets a court order to access records held by the phone companies.
The continuing need for aggressive government action against terrorism should, at this point, go without saying. The important point was to determine how government surveillance should work, not whether it was needed. It was also true, though, that the Patriot Act was passed during the post-9/11 fever that gripped the country, including government. Nearly 14 years later, it was time to consider the issue at least somewhat more dispassionately.
The change seems to be a plausible one, though the test of that is yet to come. The United States has not suffered a single foreign-born terrorist attack since 2001 and it is fair to conclude that the telephone surveillance program may have played some role in that.
The Patriot Act escaped close scrutiny until the Snowden revelations. That’s just one of the reasons that the USA Freedom Act needs to be closely monitored. Congress needs to satisfy itself that the NSA and any other agencies involved are complying with the new law, which President Obama signed on Tuesday night, but it also needs to verify with those agencies that the law is doing the job intended and in a way that serves the legitimate interests of national security.
Still, it’s good to see that Congress was able to evaluate the Patriot Act in a way that was inclusive of all interested parties and to produce what looks like a workable compromise. It’s what Congress is supposed to do and what it hasn’t done for far too long.