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What the USA Freedom Act giveth, and taketh away

- May 13, 2015

The National Security Agency campus in Fort Meade, Md.  (Patrick Semansky/AP)
The following is a guest post by H.L. Pohlman, professor of political science at Dickinson College.
By the time you read this, the House of Representatives may already have passed the new USA Freedom Act; the Senate is expected to take up the bill shortly.
The timing is no accident. Unless this bill or something like it passes before June 1, the legal basis for the federal government’s program of collecting the phone records of all Americans will expire. Adding fuel to the fire, a federal appellate court ruled last week that the National Security Agency’s bulk telephone metadata collection program is illegal even as it stands — because it could not, by any stretch of the imagination, follow from the relevant provisions of the USA Patriot Act.
An earlier version of the USA Freedom Act languished in Congress last year until time ran out. But that legislation — fatally problematic, I argued then — has resurfaced, sporting newly wide and bipartisan backing. That could be reassuring, if it came from reasoned consensus instead of groupthink. As it stands, what come to mind are the last few scenes of Cape Fear, when Robert Mitchum (the 1962 version) and Robert De Niro (the 1991 remake) just won’t die.
It’s not that the bill doesn’t have some good points. The overall problem with it is that what it gives with one hand it rather uncharitably takes back with the other.
Let me give one example.
Remember that the government has to apply to the Foreign Intelligence Surveillance Court (FISC) for the production of telephone metadata. Under the new proposal, if that application is on an “ongoing” basis and if it pertains to metadata “created before, on, or after the date of the application,” then the government can obtain that metadata from the phone companies only if three conditions are met. First, the request must be part of an international terrorism investigation. Second, there must be “a reasonable, articulable suspicion” that the “specific selection term is associated with a foreign power engaged in international terrorism” or is an “agent” of such a power. Third, the “specific selection term” used to sort the data must “identif[y] an individual, account, or personal device.”
Since these conditions significantly tighten the process by which the government obtains phone records, they are definitely a step in the right direction. What is unfortunate is that the bill does not make this route the sole and exclusive means by which the government can gain access to our phone records.
What if, for instance, the government’s application for phone records is not on an “ongoing” basis — or if the request is for records created before, on and (rather than “or”) after the date of the application?
At least two things follow.
First, in that case, the application need not be part of an investigation of international terrorism. Instead it could be part of an investigation “to obtain foreign intelligence information not concerning a United States person,” or aimed at protecting us against “clandestine intelligence activities.” Keep in mind that the definition of “foreign intelligence information” is very broad. It includes “information with respect to a foreign power or foreign territory that relates to . . . the conduct of foreign affairs of the United States.”
To be sure, if the information in question is “concerning a United States person,” then the law requires that it be “necessary” to the conduct of foreign affairs before the government could collect it. But what does “concerning” mean? For example, could the government collect the phone records of any U.S. person who is in communication with a “foreign power,” so long as the target of the investigation is the “foreign power?” A provision of the Patriot Act is relevant to this question. It says that any “business record,” including telephone records, would be “presumptively relevant” to an authorized investigation if it could be shown that the person is “in contact with, or known to, a suspected agent of a foreign power who is the subject of such [an] authorized investigation.”
So, translated into English: If you are in communication with a foreign-based group that the U.S. government is targeting for the purpose of obtaining “foreign intelligence information,” or even if that foreign-based group knows who you are, then the government will be able to collect your phone records if the current version of the USA Freedom Act becomes law. Indeed, if a request for phone records does not have to be part of an investigation of international terrorism, then the “specific selection term” noted above can be associated with any kind of foreign power — whether it is a foreign government, a corporation or a nongovernmental organization — relevant to the conduct of U.S. foreign affairs.
Second, in such a case — that is, under that slightly amended hypothetical government request — the government would not need to use a “specific selection term” that only “identifies an individual, account, or personal device.” Instead it could use a term “that specifically identifies a person, account, address, or personal device, or any other specific identifier” [emphasis added] so long as the identifier “is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought [in this case, phone records] consistent with the purpose for seeking the tangible things.”
This convoluted language seems to mean that any “specific identifier” will qualify as a “specific selection term” if it permits the collection of only the phone records that will enable the government to achieve its purpose. So, if the purpose of the government is broad, such as when it is trying to collect “foreign intelligence information” for the purpose of conducting foreign policy, then the “specific identifier” will be quite expansive, too. That, in turn, implies that a very large amount of American citizens’ phone records will still be scooped up by the NSA and analyzed.
Apologies for the legalese — but it is the loopholes hidden in that legalese that the intelligence community’s lawyers presumably hope we (and Congress!) will be unable to discover. The bottom line is straightforward enough: In terms of the privacy rights of U.S. citizens, the USA Freedom Act, as currently written, will take away more than it will give back. This could be why the White House, and the NSA, are happy to see it pass.