The Patriot Act – The Economist (blog)
AFTER missing its deadline on Sunday, the Senate met on June 2nd to pass the USA Freedom Act, which replaces and reforms a lapsed provision of the Patriot Act, the law that regulates America’s snooping. Lawmakers largely avoided debate over sundry amendments, ensuring the same bill passed by the House last month is now headed to Barack Obama, who is expected to sign it into law. This was a blow to hawks such as Mitch McConnell, the majority leader and a Kentucky Senator, who argue that the changes come at the expense of national security. Before the final vote on the bill, Mr McConnell took to the Senate floor to lament that it will “take one more tool away from those who defend our country every day.”
The USA Freedom Act will stop the indiscriminate harvesting of phone-call records by the National Security Agency (NSA), America’s signals intelligence branch. Under the revamped rule, call metadata records would be kept by phone companies, not the government. Federal officials will be required to request records using “a specific selection term” on the basis of “reasonable articulable suspicion” that the call information is linked to international terrorism. Broad search terms, encompassing everyone in Ohio, or everyone on an AT&T plan, are out.
The USA Freedom Act also contains several reforms intended to shine some light on the secret federal court established by the Foreign Intelligence Surveillance Act—otherwise known as the FISA court. First, the law requires the government to declassify FISA court decisions that are deemed “significant”. Second, the FISA court must now appoint a panel of five “amicus curiae” to advise it on matters of privacy and civil liberties when new “significant” cases come before the court.
Mr McConnell and other Senate hawks had initially opposed the USA Freedom Act, preferring to reauthorise the Patriot Act’s expiring provisions through 2020. But when it became clear on Sunday—a mere hours before three parts of the law would expire—that support for straight-up reauthorisation would not materialise, Mr McConnell reversed himself and threw support behind the USA Freedom Act. But Mr Paul blocked the procedural measures that would have been necessary to pass the bill before the June 1st deadline.
It is hard to say whether the reforms of the USA Freedom Act matter at all in the war on terror. Such is the nature of secret programmes that there is little information on whether the NSA’s powers under the Patriot Act were useful in hunting down bad guys. At any rate, many civil libertarians argue that the new law’s constraints are still too loose. The new panel of FISA court advocates, for example, will be hand-picked by the court and given only the information the court deems safe for their consumption. It is easy to imagine the amicus curiae never amounting to more than window dressing. “[C]ritics of the law can’t be faulted for fearing that it still leaves ample room for shenanigans,” writes Julian Sanchez of the Cato Institute, a libertarian think-tank.
Still, the USA Freedom Act remains a worthwhile attempt at reform. The fact that the FISA court will have to publish any significant ruling or interpretation of the ‘specific selection term’ requirement is alone a big step towards transparency in a system that has been terribly opaque for years.
This helps explain why Mr Paul is earning some flak in civil-libertarian circles. Most greeted the House passage of the USA Freedom Act with applause, believing its passage in the Senate offered the best hope for bringing some oversight to a lawlessly sweeping surveillance programme. For a man who has orated at length on the perils of government’s peering eyes, Mr Paul’s gambit seems rather short-sighted. In using his posturing and filibustering to earn headlines and raise money, it seems he has done more for his presidential campaign than his cause.
(Photo credit: AFP)