The USA Freedom Act Is Inscrutable—and That's How Politicians Like It
Power thrives in complexity, just as roaches flourish in the dark.
In a democracy citizens prevent the government from abusing them by staying informed and exercising their "rights" under the system. They monitor the politicians' and bureaucrats' conduct, and when citizens see what they consider misbehavior, they act to stop it either by communicating to their "representatives" or by voting for better people at the next election. That's the theory.
In reality it's different. Citizens don't monitor the politicians and bureaucrats, and therefore are not in a position to stop conduct they would find objectionable. Occasionally, something egregious comes to light thanks to a whistle-blower and an enterprising reporter, and that may lead to some kind of reform—all too often merely cosmetic. But that's the exception; most of the time it's business as usual. As a watchdogs, the mainstream media are virtually useless. For the most part, the people are left on their own, but they don't make good watchdogs either.
The reasons things work this way aren't hard to see. For one thing, people are busy. They have families to look after, jobs to work at, and the day is only so long. As consequential as government is, this is not a case of misplaced priorities. After all, a person's actions will have direct and often decisive effects on family, job, and other personal associations. In contrast, one vote has virtually no effect on the political system. Why spend time and energy where they will make little or no difference, when that effort could be put to where it would make a difference? It's a no-brainer. (See Bryan Caplan's The Myth of the Rational Voter.)In reality it's different. Citizens don't monitor the politicians and bureaucrats, and therefore are not in a position to stop conduct they would find objectionable. Occasionally, something egregious comes to light thanks to a whistle-blower and an enterprising reporter, and that may lead to some kind of reform—all too often merely cosmetic. But that's the exception; most of the time it's business as usual. As watchdogs, the mainstream media are virtually useless. For the most part, the people are left on their own, but they don't make good watchdogs either.
But that's not all. Even a person who might be willing to carve out time to keep an eye on the government will find that doing so is probably more than he can handle. Apart from the natural barriers mentioned above, government personnel have myriad ways to obscure what they do. Whether this is done innocently or deliberately, the effect is the same. To most people the costs of monitoring the state are raised to prohibitive levels. This lets politicians and bureaucrats get away with things they might not otherwise get away with.
The controversy over the USA Patriot Act and USA Freedom Act provides a good illustration of this problem. Before getting into that, however, let's look at the theory a little more closely. Fortunately, we have an excellent book on the subject: economist Charlotte Twight's Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans (2002).
Twight's thesis is that the people who run the government have a long list of ways to raise the "political transaction costs" that the taxpayers would have to overcome to keep the state in check. In economics, transaction costs are the money, effort, and time spent on seeing a transaction through to successful completion. If you mow your own lawn, you face no such costs. But if you hire someone, you do. The effort and resources devoted to finding the right person and making sure the job is done right constitute transactions costs.
The political arena has transactions costs also. As Twight puts it: "They are the costs to each of us of perceiving, and acting upon our assessment of, the net costs of particular governmental actions and authority." Besides the inevitable and built-in transaction costs entailed by government, there are also "contrived" costs, that is, those "deliberately created by government officials to increase our costs of assessing and responding to government policies." The array of devices to raise these costs ranges from needless complexity and secrecy to outright lying. These devices have one thing in common: they obscure the government's activities, making it difficult to impossible to see what the state is up to. As a result, most people perceive that even trying to lift the government's veil is essentially futile. (And even if it can be lifted occasionally, what could one person do?) Twight's book contains several historical cases illustrating her theory, including stories about the origins of Social Security, Medicare, and government surveillance—which brings us to Patriot and Freedom Acts.
If you followed the congressional and public debate over whether parts of the Patriot Act should be permitted to expire and whether the Freedom Act would really limit government surveillance, you'd be understandably bewildered. The amount of reading was huge, and nearly everyone had a different take. Defenders of government spying wanted simply to extend the sections due to expire, but those who wanted to abolish mass spying took different positions. Just attempting to thoroughly read up on whether the Freedom Act was a worthwhile step toward eliminating bulk phone-data collection or just a cosmetic change would have required giving up your job or your family or both.
You might think you could leave the hard work to the civil-liberties organizations you trust, but that path was not without its problems. The various groups disagreed over whether the bill was a net plus or a net minus. Respected authorities couldn't be sure that bulk collection of phone metadata would really end with the bill's passage. For example, the Electronic Frontier Foundation (EFF) said, "So the bulk collection of everybody's phone records? As far as we can tell, this should end that" (emphasis added).
As far as they can tell? They spend all their time watching this stuff.
Likewise, the Freedom of the Press Foundation's postmortem on Congress's action stated:
The USA Freedom Act supposedly bans bulk collection of phone records or any other private records, and we certainly hope it actually does. But its provisions are vague and confusing, leading many legal experts to believe they could be re-interpreted in secret—by NSA lawyers with a history of warping the common definitions of ordinary words beyond recognition—and could lead the FISA court to continue to allow the NSA to collect large quantities of Americans' data in secret. [Emphasis added.]
The foundation is no more certain that the EFF about the bill's effect on bulk data collection. If these professional experts can't really be sure of the bill's effect, how can the rest of us?
Even the guy who blew the whistle on mass surveillance, Edward Snowden, in a New York Times op-ed celebrating the expiration of Section 215, warns:
Though we have come a long way, the right to privacy … remains under threat. Some of the world's most popular online services have been enlisted as partners in the N.S.A.'s mass surveillance programs, and technology companies are being pressured by governments around the world to work against their customers rather than for them. Billions of cellphone location records are still being intercepted without regard for the guilt or innocence of those affected. We have learned that our government intentionally weakens the fundamental security of the Internet with "back doors" that transform private lives into open books. Metadata revealing the personal associations and interests of ordinary Internet users is still being intercepted and monitored on a scale unprecedented in history: As you read this online, the United States government makes a note.
So why the big to-do about the Freedom Act? If you wanted to decide for yourself without experts, you could have read the text of the USA Freedom Act. It begins:
SEC. 101. ADDITIONAL REQUIREMENTS FOR CALL DETAIL RECORDS.
(a) Application.—Section 501(b)(2) (50 U.S.C. 1861(b)(2)) is amended—
(1) in subparagraph (A)—
(A) in the matter preceding clause (i), by striking "a statement" and inserting "in the case of an application other than an application described in subparagraph (C) (including an application for the production of call detail records other than in the manner described in subparagraph (C)), a statement"; and…
Well, you get the idea. It goes on that way for a hundred pages. Even when you think you may understand something, you still can't be sure. For example:
SEC. 301. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION.
Section 702(i)(3) (50 U.S.C. 1881a(i)(3)) is amended by adding at the end the following new subparagraph:
"(D) LIMITATION ON USE OF INFORMATION.—
"(i) IN GENERAL.—Except as provided in clause (ii), if the Court orders a correction of a deficiency in a certification or procedures under subparagraph (B), no information obtained or evidence derived pursuant to the part of the certification or procedures that has been identified by the Court as deficient concerning any United States person shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired pursuant to such part of such certification or procedures shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of the United States person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
"(ii) EXCEPTION.—If the Government corrects any deficiency identified by the order of the Court under subparagraph (B), the Court may permit the use or disclosure of information obtained before the date of the correction under such minimization procedures as the Court may approve for purposes of this clause.".
You might do better with the official summary, but not much.
To complicate things, your interpretation of the text may differ radically from that of the secret FISA court or someone in the Justice Department. Remember, an appeals court ruled that the now-expired Section 215 of the Patriot Act did not authorize bulk-data collection—and the author of the bill agreed.
Surveillance is hardly the only part of government with high contrived political transaction costs. The budget is another. A few years ago I learned the hard way that calculating the effect of budget sequestration is a task that only policy wonks and masochists were likely to undertake.
What's the moral here? Power thrives in complexity, just as roaches flourish in the dark. Complexity raises political transaction costs and thereby reduces public scrutiny and resistance. That's just how the politicians and bureaucrats like it.
This piece originally appeared at Richman's "Free Association" blog.