NSA

The USA Freedom Act Is Inscrutable—and That's How Politicians Like It

Power thrives in complexity, just as roaches flourish in the dark.

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Yuri Yu. Samoilov/Flickr

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. 

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  1. TOP. MEN.

    1. We have to pass it to find out what it collects!

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  2. The reason things don’t work this way…

  3. Well, you people wanted lawyers running things. This is what you get.

    1. WHAT DO YOU MEAN “YOU PEOPLE”!!!!!1!

  4. Hey,always use 20 words when 5 will do..Confusion is the friend of lawmakers and lawyers.

    1. If they can maintain that “Congress shall make no law…” is complicated and fuzzy and often means the exact opposite of what it says, exactly what is the point?

      1. That depends on what your definition of “is” is.

      2. The 4th and 5th amendments are fuzzy too,hell ,the war on drugs would not be possible without lawyers.

      3. Laws mean whatever the person interpreting them wants them to mean.

        1. And politicians are opposed to words with meaning. Lest they be pinned down on actually taking a stand on something important.

    2. +1 billable hour.

      1. Even in the shower thinking about a case,wash your dick and get paid for it.

  5. Just like the cops, unless these agencies face penalties for breaking the law, they’re just going to ignore it.

    1. unless these agencies face penalties for breaking the law, they’re just going to ignore it.

      This is just it. The only penalty for illegally/unconstitutionally gathering evidence is that it might be disallowed in court and damage the government’s case. But spooks are not interested in prosecution. They are interested in protecting the government and its interests–even from the American citizenry. Even if they were interested ultimately in prosecuting a target for a crime, they could use their illegally obtained evidence to build a more palatable case that would pass by a judge.

      Furthermore, this metadata is probably used to index other databases together. It may even be a sacrificial ploy to distract us from the fact that they are sucking up our phone calls, emails, texts, and social media dumps to build a map of who is connected to whom and about what we discuss. It’s not hard to imagine.

      If they have no penalties for violating our constitutional rights, then the only factors limiting what they can gather is technology and imagination.

      1. This is so paranoid it’s gotta be true.

        And I’m not being sarcastic.

      2. Well, just what do you think they mean by the phrase “continuity of government” ?

  6. It’s like reading one of those Goosebump choose your own adventure novels they used to write, only instead of every page referencing another page to find out what happens, you get it just about every sentence.

    When you write laws like this, it is impossible to have the rule of law. No one knows what the hell the law is. There probably isn’t a single person who actually knows everything a bill as complicated as the ACA does, especially when everyone starts ‘interpreting’ the various aspects of it.

    I’m reminded of how often prosecutors will stretch a law which ever way they want. To charge someone with something completely trivial, they’ll argue it’s the letter of the law. When said law can be applied or slapped on as an extra charge (or in lieu of a charge they can’t prove), they will stretch its meaning well past the rational breaking point. And those laws aren’t even a fraction as complicated as what goes through Congress.

    We live in a society where it is impossible for *anyone* to actually know what the hell the law is. Laws aren’t written down so people can’t claim ignorance anymore. They’re written in such a way to cause confusion that can be exploited.

    1. And it doesn’t take a conspiracy theorist to guess what the hell some of these politicians imagine doing with the data. We are talking about people who, despite their suggestions, think central planning and progressive economics are just swell. One of the chief arguments against socialism from free market advocates is that no one can plan and allocate resources like the market. Well, don’t tell me an asshole like Obama or Elizabeth Warren isn’t arrogant enough to think that their brands of socialism could work if the planners had the right kind of data.

      It’s like the modern Marxists who think machines will bring about their utopia. Or maybe I’m so disillusioned at this point I’m off the reservation. How can the government take steps to collect every possible bit of data on us possible, or be planning it, and not have some overarching goal of what to do with it all?

      1. I’m not sure that modern Marxists really consider whether they have the ability to plan a multi-trillion dollar economy. It seems that they hate the perceived chaos of a free market so much that they just want to replace it with a top-down system of any kind. They are authoritarian assholes who choke at the notion of others making their own decisions.

      2. You’re 100 percent correct.

    2. How many of the Reps or Senators who voted for the FREEDOM Act actually followed the long and meandering thread that stitched together and altered pre-existing law? Hell, how many of their STAFFERS put in the necessary time and effort before the bill was passed and sent to the President? Who in the West Wing has done this? I think the number of people in the Legislative and Executive branches, who have actually done the homework, start to finish, is perhaps small enough to be counted on your fingers and toes. I think that writing and passing bills in the format of the FREEDOM Act, and certainly doing so without having actually done the work to figure out what the total effect of the thousands of textual revisions will be, is government malpractice!

      In order for people to keep control of their government, legislation must be short, readable, contain a minimum of FREEDOM Act-style “threading.” and stick to a single subject with no amendments that do not speak to the bill’s core topic and purpose. I would support a Constitutional amendment to that effect, especially if it included penalties for legislators and bureaucrats who violated it. I’ve wanted such a thing for years, and perhaps we have arrived at a point when a critical mass of citizens agree.

  7. OT:
    If you think the French are a funny race, well:

    “Yves Saint Laurent ad banned over underweight model”
    […]
    “Advertising standards officials in the U.K. have banned a commercial by French fashion company Yves Saint Laurent over its use of a model who appears to be “unhealthily underweight.”
    http://blog.sfgate.com/dailydi…..ght-model/

    She’s ugly, but hey, so’s Shrillery and she gets her mug in ads.

    1. It must feel awesome to be able to impose your personal aesthetic sensibilities upon others by fiat.

    2. Yes, let’s use an arbitrary standard of what is considered to be “unhealthily underweight” to ban something. What could go wrong?

      1. The Precautionary Principle comes with one long leash.

      2. You know who else banished the unhealthily underweight to camps…

        1. The Coachman in Pinocchio?

    3. WOW, anorexia, how do you spell it?

  8. “democracy citizens prevent the government from abusing them by staying informed and exercising their “rights” “….. what you describe here is not a democracy but a representative republic.

    in a democracy the people make the decisions via vote (one person, one vote, majority rule), and any ‘representatives’ would simply see to the implementation of the voters majority decree.

    please google ” Republic vs. Democracy ” for more specific details of the difference.

    1. It is fascinating that, in an article all about quibbling lawyers, you quibble over such a vague fuzzy meaningless distinction.

      1. Is it vague, fuzzy, or meaningless? Because neither “vague” nor “fuzzy” is synonymous with “meaningless”.

        Fuzzy sets are things.

        1. If I’d wanted synonyms, I’d have used them.

    2. Ah! Just noticed this. I have a comment below with a similar take. Scarecrow, I would say that this argument is actually cogent here because this type of law is easier to pull off in some systems of government, and the fact that our courts, both chambers of congress, the executive position itself and the various agencies under it have all failed to uphold the constitution. In many types of “democracy,” this would be totally expected, but our specific system of government is meant to stop this sort of thing. So half of the importance of this snooping stuff is that our system of government has been corrupted into a semi-democracy, with executive orders (executive; semi-democratic) being able to systematically pervert laws (legislature; republic).

    3. A democracy is two wolves and a sheep debating dinner.

    4. In the olden days, kings had the Divine Right bestowed unto them by God.

      Today our government has the Will of the People bestowed unto them by Representation.

      Either way it’s carte blanche to rule as they wish. If anyone objects they can just point to the supernatural entity that bestowed them their power, and tell the dissenters to screw (or have them locked in a cage).

      Divine Right of the King, Democracy, Republic, blah blah blah, it’s all meaningless.

      Absolute rule is the name of the game. Only the costumes and technology have changed.

      1. While I largely agree that absolute rule is the name of the game, IN THEORY, an electorate that is educated in civics and the basic principles (read classical liberal ideals) underlying their social contract/constitution would be capable of keeping government in check and the constitution allows for numerous ways to accomplish this. In reality, what happens is that this type of society slowly devolves into absolutism as the voting class becomes less interested in government. It’s like Maslow’s hierarchy. Once an individual believes they are secure from tyranny, they no longer worry about it — until they’re no longer secure from tyranny. Lather. Rinse. Repeat.

  9. The Freedom Act is the US Constitution, which the DC dunces do not follow.

    These dunces keep on passing laws like farts. As if Congress was a factory and they have to pass x amount of laws per day.

    1. Well, if they weren’t passing laws, people might think they weren’t doing anything and by gawd we expect more productivity from the people we hire!

      1. Yes, the “do nothing” Congresses are portrayed by the media as a bad thing. Despite the fact that they’ve been passing laws for two hundred plus years. The basics, murder, robbery, rape, assault, etc., have been covered. Why do they need to keep cranking out laws?

  10. In a democracy citizens prevent the government from abusing them by staying informed and exercising their “rights” under the system.

    False. What’s happening here is exactly what’s expected in a “democracy,” typified by majority rule.
    The majority of people really don’t seem to care much about the NSA surveillance, and the VAST majority will look at the USA “Freedom” Act and say “Hey that’s great! They’re protecting our rights!”
    In our interesting form of constitutional republic: the courts should be there to stop this, the president can tell the executive agencies NOT to do things that aren’t required by law, one of the bodies in a bicameral parliament could have stopped it, etc.
    I usually don’t like to play semantics like this, but I think the catchall “democracy” dumbs down the entire debate and lets people off the hook for not understanding our system of government, something that every voting citizen should know reasonably well. It allows people that are frustrated with government to hand more authority to the President, as they see that office as being more efficient at “getting things done,” and he’s the most democratically elected official in the federal government, hence occasional calls for “democracy.”

    1. It’s called ‘tyranny of the majority.’

      Although, at the moment we all have tyranny of the minority now.

    2. And today’s “Phila. Inquirer” wants more democracy. Decrying a low turnout of 12% in a recent primary, they think allowing people to register to vote when they show up at the polling place is one answer to getting more public participation in elections. Yeah, a nice way to get even more ignorant voters to rob Peter to pay themselves. I wonder, though, how the Inky editors would feel if several busloads of evangelicals showed up at the last moment to vote against some prog politician whose late campaign words were twisted into an anti-Christian message by the likes of Bill O’Reilly?

      1. Here’s a serious problem. Take my apolitical wife When we heard on the news someone suggesting we making voting mandatory her first reaction was ‘that would be a good thing.’

        I reckon that’s the first reaction of the majority of people.

        Voting is good and important to democracy = It would be a good thing.They don’t dig deeper about the implications of this thought.

      2. Look if they really want to boost participation rates they need to follow the Chicago model.

        1. That’s one way to boost participation rates.

          To boost participation rates without fraud, however, they could put “None of the Above” on every ballot.

      3. I wonder, though, how the Inky editors would feel if several busloads of evangelicals showed up at the last moment to vote against some prog politician whose late campaign words were twisted into an anti-Christian message by the likes of Bill O’Reilly?

        Of course they’d scream bullshit. Principals trump principles.

    3. False. What’s happening here is exactly what’s expected in a “democracy,” typified by majority rule.

      Majority rule (or mob rule) is only one of many forms of democracy.

      I usually don’t like to play semantics like this, but I think the catchall “democracy” dumbs down the entire debate

      The term “vertebrate” doesn’t dumb down biology; it’s a necessary term to talk about all sorts of different animals, from fish to reptiles, mammals, and primates. Same with “democracy”: it’s a generic term that describes something distinctly different from, say, theocracy. We live in a democracy, as do Europeans, although our forms of government are very different. A heavy-handed, stagnating progressive parliamentarian system is a democracy just as much as a nearly libertarian republic that prizes individual liberties above all else.

  11. By failing to find the metadata collection program unconstitutional as opposed to simply not authorized by Section 215, the appeals court created this mess, probably to protect the children. We have no idea if the NSA managed to already get that program authorized under another section from the rubberstamp FISA “court”.

    On top of that, the Freedom Act does require metadata collection by telecoms — in information that, lest we forget, the Supremes have ruled is not covered by the 4th Amendment — with a warrant requirement to get that information; of course Section 215 also required warrants (or judicial “orders”).

    It’s all BS. The theater in Congress over the past few weeks only succeeded in doing the exact opposite of what the media was saying it was about. Shocking.

    1. “Responsible” journalists were saying that the FREEDOM Act required warrants for meta-data collection. So I went to the Act itself, found the strange list of textual changes in pre-existing legislation that Richman describes, and could not find ANYTHING that requires warrants, which conform to the Amendment IV standard of “reasonable.” There was language that spoke of “judicial orders,” and I think that some people have been bamboozled into thinking that this equates to requiring “warrants” as Amendment IV defines them. It does not. For a “reasonable” search or seizure to occur, a warrant must be issued on probable cause and specifically describe the place to be searched and/or the persons or things to be seized. That isn’t what happens when the government requests, and the FISA court grants, meta-data “judicial orders.” The government had to hurry to pass FREEDOM because it needed some legal fig leaf in the form of an Act of Congress to justify continuation of meta-data collection. Letting PATRIOT Section 215 expire convinced many confused people that they had “won a victory” for privacy, and they may very well continue in that mistaken belief until someone provides proof that FREEDOM only flicked the pea under a different shell.

  12. “In a democracy citizens prevent the government from abusing them by staying informed and exercising their “rights” under the system….That’s the theory.”

    Yeah, apathy is both the problem and the solution.

    We started hearing about warrantless wiretapping ten years ago. It’s only become okay within the last week for Congress to see the Fourth Amendment as something other than a death pact with terrorists.

    That took ten years because of voter apathy about the Fourth Amendment.

    On the other hand, when the voters really care about an issue, it’s usually not good news for our individual rights. When a consensus builds for government action, that rarely means protecting our individual rights from the government. In that sense, voter apathy is a good thing. Let’s hope the voters continue to be apathetic about mass shootings vis a vis our Second Amendment rights.

    The problem isn’t really that people don’t care–it’s that they don’t care about our rights. God bless those who shrug their shoulders on the Second Amendment after every mass shooting, but for ten years, we knew the government was searching our communications without a warrant–and hardly anyone cared.

  13. I think the only real solution is to restore Congress back to its implicit maximum recommended size – or at least in that direction. At 30,000 people per district, that means the House is 10,000 critters. With 10,000 elected officials in the legislature, the oversight committees would be chock full of legislators who have to earn their spurs overseeing because they can’t possibly be herded around to pass more non-overseen unread legislation. The party machinery and all the other centralized stuff in DC would break – so critters would have to focus back on districts again. Smaller districts make it easier for a challenger to actually challenge – which also means that they would have an incentive to spread information around to voters in the district. 10,000 critters raises the cost of DC-based lobbying and polbuying thru the roof. That alone reduces the net benefit of rent seeking – since the benefit remains the same but the cost goes up by 20x.

    It is no coincidence imo that Congress has essentially ceased to function in oversight – and the executive branch and federal government generally has grown massively – ever since Congress froze its size in 1920. Even if 10,000 critters is ‘too much’ – we should at least head back in that direction of actually having a representative legislature again rather than what is now the 2nd least representative legislature in the world. Say triple the size of both the House and Senate to start.

    1. I agree. I have read proposals to this effect, but they are considered “extreme”. But yeah, the House is the key.

      1. The House is the key only if the other branches actually follow the law…

  14. I’m not sure that modern Marxists really consider whether they have the ability to plan a multi-trillion dollar economy. It seems that they hate the perceived chaos of a free market so much that they just want to replace it with a top-down system of any kind.

    A la the dog chasing a car having no idea what to do if he caught it.

  15. “Surveillance is hardly the only part of government with high contrived political transaction costs. The budget is another.”

    Funny, you should say that, because internet providers are screaming foul over having to keep and store all that bulk data. They have now requested compensation for storage services. We will get spied on, and then pay ten-fold for the priviledge. Get an early start, polish your resume and start applying for all those new govt. positions ! This particular part of the story, gets so damn old.

  16. “As far as we can tell …”

    I can tell one thing about the Freedom Act from its name: it has nothing to do with freedom other than limiting it.

    The only reason for all the technical and obscure language is to create loopholes for the surveillance state to do any damn thing it wants.

    But it’s all with the good intentions of the ruling elite, so it’s all good.

  17. A Richman Sunday post and just over 50 comments. Who ARE you people?

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