NEWS ANALYSIS: The U.S. Senate passed USA Freedom Act without amendments and the President has signed it, but despite the celebrations not much has actually changed.
Privacy advocates everywhere are celebrating. The passage of the USA Freedom Act by the Senate and the signing by the President mean that there will be changes to the way the intelligence community collects phone data and the way the Foreign Intelligence Surveillance Court works— eventually.
But now, right after the bill has passed into law, nothing much has changed at all. The government has six months to figure out how to wrap up the process of collecting and storing phone metadata.
In addition, the phone companies involved, which means nearly all U.S. phone companies, will be required to store that metadata and to make it available to the intelligence services if served with a warrant requiring it.
Unfortunately, it only applies to phone metadata. That metadata can give a good picture on who you call and for how long. If it’s analyzed it provides a good picture of your relationships with others and in turn their relationships with even larger groups. But that’s all you get with the metadata. There’s no question that it invades your privacy if used indiscriminately. But despite everything, it still doesn’t show what you actually said.
Another major provision is that the FISC will have to declassify some of its decisions. Exactly how that will work and which decisions will have to be declassified remain to be determined. Even if the court embraces openness, it will take a while, perhaps a year or two, for it to determine rules and procedures.
But in reality, the whole fuss about Section 215 of the Patriot Act, which the USA Freedom Act revised, is far from the only means that the government has to search at will through your business and your personal life. For example there are the rarely-discussed National Security Letters, which allow the FBI to demand access to your communications and financial data with no judicial review at all.
In fact, all that’s required for the FBI (or another intelligence agency) to go search your records is a letter from the supervising agent in charge of your FBI office. Because NSLs don’t require a warrant or anything else, they aren’t subject to even the lenient standards of the FISC.
Compounding the issue is the gag order that goes along with an NSL, which prevents the companies being served with one from telling anyone it’s happened. Those orders are usually perpetual, which means that they can never be revealed.
By now you’re probably asking yourself whether this violates a number of Constitutional protections, such as those found in the First and Fourth Amendments.