On June 2, Congress passed—and President Obama signed—the USA Freedom Act, which re-authorized the PATRIOT Act and extended the legal framework for the federal government’s fight against terrorism.
However, due to the efforts of Senators Rand Paul (R-KY), Ron Wyden (D-OR), other legislators and a coalition of public interest groups, Congress included amendments that scaled back the legal authority of the National Security Agency to collect bulk data on phone calls conducted by millions of American citizens.
The government, by way of the NSA, can no longer collect all records of American telephone calls and Internet traffic and store them for analysis. Data collection is now limited by law to the “greatest extent reasonably practical,” language which prevents collection based on service provider or region.
According to the Electronic Freedom Foundation, “Technology users everywhere should celebrate, knowing that the NSA will be a little more hampered in its surveillance overreach, and both the NSA and the [Foreign Intelligence Surveillance Act] FISA court will be more transparent and accountable than it was before the USA Freedom Act.”
The key phrase here is “a little more hampered.” Phone companies can still collect and archive such data, but the government has to prove it has reasonable suspicion that an individual is linked to terrorism in order to get the information.
The Fourth Amendment of the Constitution is based on opposition to the concept of a general warrant. The Fourth Amendment protects individuals from unreasonable searches and requires a search warrant for most searches, subject to the warrant clause which reads “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A general warrant, on the other hand, empowers an official with broad discretion to search anywhere, anytime for anything. Abuse of the use of these warrants led to the adoption of the warrant clause in the Fourth Amendment.
In the early 1970s, Congress was critical of the Nixon Administration’s efforts to use national security as a pretext to spy on political opponents, and in 1978, they passed the Foreign Intelligence Surveillance Act (FISA). The president now has to apply to a special court of seven sitting federal judges for approval of electronic surveillance warrants. In 1994, the FISA warrant requirement was expanded to include physical searches.
The PATRIOT Act of 2001 expanded the number of judges to 11 and amended the requirement from making foreign intelligence the purpose of the investigation to a significant purpose. It also changed the focus on activities of a foreign power to include groups engaged in international terrorism.
This change ended what until then had been a firewall, or barrier, between criminal and national security investigations by the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA). Prior to the PATRIOT Act, this provision of FISA was designed to prevent the administration from bypassing the strict warrant requirements applied to criminal investigations by using national security as a pretext, as national security investigations were subject to a less critical standard by the FISA Court.
However, this firewall prevented cooperation between the FBI and the CIA and was seen as an obstacle to more effective anti-terrorism efforts.
The federal government has long interpreted the PATRIOT Act as providing battlefield authority, establishing anti-terrorism efforts under war powers rather than law enforcement authority constrained by the fourth and other constitutional amendments. They have long applied this argument to justify data-mining efforts and bulk data collection. However, FISA—despite recognizing the special conditions applied to national security investigations—has long required a warrant for any search where even one party is a U.S. citizen.
The USA Freedom Act is an important piece of legislation because it re-affirms the warrant provision of the Fourth Amendment as it applies to electronic surveillance in the United States. In addition, it enhances the reporting requirements to FISA courts, gives public companies opportunities to publicly report on the number of FISA warrants they respond to and creates more openness about FISA court activities.
One of the most important changes in FISA court procedures is that the court is required to designate “amicus curiae” advocates to fight for the public interest when the court considers important legal issues regarding Americans’ rights to privacy.
This recent legislation also re-authorized three significant aspects of the PATRIOT Act. The authority to use roving wiretaps, a term that authorizes surveillance of an individual who may be using multiple phones or various Internet channels in order to evade surveillance, has been preserved. Authorities are also able to continue to access business records, subject to some First Amendment restrictions, and the disclosure of government access of these records is prohibited. Finally, the “lone wolf” definition has been continued. This allows surveillance of a non-U.S. person who is engaged in terrorist activity but without any proven link to a specific foreign power or group. This surveillance must be authorized by the FISA court.
The Electronic Freedom Foundation (EFF) applauds “a day some say could never happen” in which Congress reduced the surveillance power of the NSA. However, their battle to end the “overboard surveillance of our digital lives” continues.
According to the EFF, “The government has used secrecy and the claim of national security interests to ward off public oversight. No reform can be effective unless we bring more sunlight into how the government is interpreting the law and the surveillance programs it is turning against law-abiding citizens. This necessitates an overhauling of the classification system, reforms to the security clearance process, strong protections for whistleblowers, even more transparency to the FISA Court and addressing the abuses of the state secrets privilege.