Senate Majority Leader Mitch McConnell of Kentucky broke with House Speaker John Boehner, opposing the new USA Freedom Act (J. Scott Applewhite/AP)
The following is a guest post by H.L. Pohlman, professor of political science at Dickinson College.
After a great deal of political posturing and brinkmanship, the Senate finally passed the House version of the USA Freedom Act. The new law ends the government’s program of collecting, in bulk, the metadata of all telephone communications inside the United States. Victory at last, the civil libertarians exult: Finally, some rebalancing of privacy and national security concerns in the post-9/11 world!
Except … not so fast. Discerning readers will recall that I have raised a number of doubts about the degree to which the Freedom Act will significantly curb the government’s telephone metadata collection and analysis program. Although the law does prohibit the bulk collection of the metadata linked to all American telephone communications, it arguably will expand the government’s ability to analyze the data it does collect.
How is this possible?
Well, in the past, the government collected as much U.S. telephone metadata as it could, but the Foreign Intelligence Surveillance Court (FISC) only allowed the government to analyze the data if there was a “reasonable articulable suspicion” that a foreign telephone number was associated with specific international terrorist groups. The government would query the database, which contained up to five years of U.S. telephone metadata, to see if that foreign terrorist number communicated with someone inside the United States. If there was a link between the foreign number and a U.S. number, then the government would check what numbers were linked to that U.S. number, and so on.
In the past, the government analyzed the metadata up to three “jumps” from the initial “seed” number, but that initial number had to be linked to international terrorism. One year there were only about 300 such “seeds.” Thus, the government collected as much data as it could, but only looked at a very small percentage of it.
However, the Freedom Act arguably establishes two different ways for the government to collect telephone metadata. If it collects metadata on an “ongoing” basis and the request is for metadata created “before, on, or after” the date of the application (my emphasis), then the government can only analyze the data for counterterrorism purposes — just as before.
But if the government collects the telephone metadata in any other way — if for example it collects metadata created “before, on, and after” the date of the application (which would make sense, actually) then the Freedom Act seems to permit the government to analyze the data not just for specific cases of counterterrorism, but for the purpose of conducting US foreign policy — a much broader category.
Obviously that breadth would in turn mean that the government would query the database with many more “seed” numbers. Any foreign number associated with a foreign state, corporation, or group that has foreign intelligence value, subject to a few caveats, could be used to query the metadata, which now will be held by the telephone companies. The government won’t collect all the metadata, but you can bet there will be many more than 300 “seed” numbers.
The big question, then, is whether the FISC will permit the government to engage in this expanded program of telephone metadata analysis or whether it will it continue to restrict the analysis of telephone metadata to counterterrorism purposes. Section 104 of the Freedom Act does give the court the authority to impose what it calls additional “minimization procedures” on the “production” of “tangible things,” including telephone metadata – additional, that is, to those required by the statute. So the FISC does have the power to solve the problem raised above: It could limit the government’s collection and analysis of telephone metadata to the fight against foreign terrorist groups. On the other hand, we have to remember that this is the same court that for several years secretly approved the bulk collection of U.S. telephone records (i.e., all of them), pulling in the reins only when Edward Snowden blew the whistle in 2013.
So the story is not over. The FISC has yet to weigh in on whether the government can expand the use of telephone metadata analysis as a tool of U.S. foreign policy. If the court goes along with the expansion of the use of these analytical tools, then American privacy is more endangered than ever. The irony is that the court’s privacy is rather closely held within the executive branch — so it’s not clear we will find out what choice it has made anytime soon.
