Sen. Rand Paul accomplished something worthwhile when, almost single-handedly, he saw to it that Section 215 of the Patriot Act expired. For that he deserves our heartfelt thanks. But where does the expiration now leave us opponents of indiscriminate government spying on innocent people? Not in such a great place.
Shortly after 215 disappeared, the Senate passed the House's watered-down USA Freedom Act, which perhaps puts some meaningful though modest restrictions on the government's access to our communications data, but about which the civil-liberties community properly has decidedly mixed feelings. With or without the so-called Freedom Act, however, the government's ability to conduct mass surveillance, unrestrained by the "probable cause" standard in the Constitution, lives on. The NSA and kindred agencies have many more arrows in their quiver than Section 215. An appeals court had already ruled that what the government was doing—collecting everyone's "metadata"—exceeded what 215 appeared to permit. Yet the NSA proceeded anyway.
As privacy watchdog Julian Sanchez writes, "While 'Sunset the Patriot Act' makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent—and includes an array of overlapping authorities that will limit the effect of an expiration."
Shane Harris, writing at the Daily Beast, puts it this way: "The really big winner here is the NSA. Over at its headquarters in Fort Meade, Maryland, intelligence officials are high-fiving, because they know things could have turned out much worse." Harris quotes a "a former senior intelligence official" who said, "What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community." Harris adds:
Here's the dirty little secret that many spooks are loath to utter publicly, but have been admitting in private for the past two years: The program, which was exposed in documents leaked by Edward Snowden in 2013, is more trouble than it's worth.
While Sanchez doesn't call the Freedom Act a "win" for the NSA, he told the Daily Beast, "I'd certainly agree it's not a loss for NSA in any meaningful way. Indeed, there are some respects in which a shift to the carrier-centric model [with telecoms not the government holding the metadata] is likely to give them greater flexibility by allowing them to query on data the FISC [Foreign Intelligence Surveillance Court] order doesn't permit them to collect."
Peter Baker and David Sanger of The New York Times write that "in addition to new restrictions on domestic data sweeps, the [Freedom Act] plan would require more transparency and introduce ostensibly independent voices into secret intelligence court proceedings." But then they quote a "recently departed senior intelligence official," who said, "This is hardly major change."
So where's the gain for the right of privacy?
Baker and Sanger add:
The legislation would still leave an expansive surveillance apparatus capable of tracking vast quantities of data. Some of the most sweeping programs disclosed by Mr. Snowden, particularly those focused on international communications, would remain unaffected. The N.S.A. could continue efforts to break private encryption systems, and information about Americans could still be swept up if originating overseas.
The more one reads about the "reforms," the more one doubts that anything will change very much. It's enough to make one think that the row in Congress was just a big distraction. But at least bulk collection of phone metadata as we know it will apparently end. As the Electronic Frontier Foundation puts it, "The text of USA Freedom Act is tightening the definition of specific selection term in a way designed to ensure only specific individuals, accounts, and devices qualify as specific selection terms. So the bulk collection of everybody's phone records? As far as we can tell, this should end that." (Emphasis added.) As noted, the program was expensive and it didn't prevent terrorism anyway— needles are tough to find in haystacks—which may be why the NSA is not mourning the loss.
If the state is less able to access our bulk phone data today than it was last week, then that's a good thing. But let's not fool ourselves: the national-security state lives.
This piece originally appeared at Richman's "Free Association" blog.