USA Freedom Act: one small step for privacy

After letting the US government’s bulk collection of Americans’ phone records go “dark” for two days, the Senate on Tuesday passed a bipartisan House bill that reforms a section of the Patriot Act. President Obama, who argued for the reforms, signed the bill Tuesday evening.

But this is not the end of the debate that pits the nation’s need for security against the public’s desire for privacy.

Yes, this particular issue was resolved – and by an unusually broad consensus for Congress, given the controversy. The USA Freedom Act, as the reforms are called, passed the Senate 67 to 32 and the House 338 to 88.

And yet, because both the terrorism threat and the technology revolution are ongoing, so is the security-versus-privacy debate, say observers.

For decades, America has tried to find a balance between having effective measures in place to protect the nation and allowing citizens to retain control of their personal information. With the USA Freedom Act, lawmakers have split the difference, somewhat dialing back some measures that have favored national security.

“We’re only going to move into a more data-rich environment. I think we’re probably at the beginning of the debate, not the end of it,” says Adam Segal, director of the digital and cyberspace program at the Council on Foreign Relations in New York.

The just-passed legislation leaves it to phone companies, instead of the federal government, to gather and store metadata – the numbers called and the time and length of calls (though not content). US officials can still access the data, but they will have to get a warrant from a special court to do so. A new panel of civil liberty advocates will argue for privacy at the special court. The government has six months to make the transition.

Passage of the USA Freedom Act wasn’t the only security-versus-privacy headline on Tuesday. The Associated Press published a story about FBI surveillance planes flying over both metro and rural areas in the United States. That’s been happening for decades, but now the planes are equipped with high-tech cameras and, in certain cases, technology that can track cellphones, according to the AP.

“We’ve been dealing with this question now for almost 100 years,” says Melanie Teplinsky, a cybersecurity expert at American University Washington College of Law in Washington. The invention of the phone changed everything, she says, and Congress has been struggling over security and privacy issues ever since.

“We’re going to continue to see this debate over and over again because the law is being challenged by technology,” Ms. Teplinsky says.

Last year, when Mr. Obama outlined his proposed reforms to the data-gathering section of the Patriot Act, he underscored the historical tension between privacy rights and national security – concerns that resurfaced in a vigorous Senate debate in recent days.

Among other things, the president cited government excesses during the 1960s, when the government spied on critics of both the civil rights movement and the Vietnam War. In the 1970s, laws were established to ensure that “our intelligence capabilities could not be misused against our citizens,” as he put it.

Over time, the country goes through recalibrations – stressing security when threats arise, then adjusting as the public, Congress, and the courts assess the effect on citizen privacy and liberty.

That’s what has happened with the Patriot Act, first signed into law by President Bush in 2001 as a result of the terrorist attacks on Sept. 11 of that same year, says David Schanzer, director of the Triangle Center on Terrorism and Homeland Security at Duke University in Durham, N.C. It was Section 215 of the Patriot Act that the government used to justify its phone data program and that the new law reformed.

Mr. Schanzer calls the various adjustments of the Patriot Act “a natural evolution.”

“We’ve actually had a number of reauthorization debates, and each time a lot of the different positions have been tweaked [and] modified, and greater oversight and accountability has been built in.”

He calls the USA Freedom Act “the most serious effort at reform” of the Patriot Act to date, but it also doesn’t take away the main powers in the act, he points out. The government can still access the data, even if it doesn’t hold it. Congress, he says, has not shackled the government; it has increased oversight of government.

Mr. Segal at the Council on Foreign Relations describes the changes as “an inching back toward the privacy side.”

While the reforms drew a broad consensus in Congress, staunch privacy advocates, such as Sen. Rand Paul (R) of Kentucky, say they don’t go far enough to restore civil liberties. Senator Paul wanted the data program to cease, a point he made in a nearly 11-hour speech and by forcing the program’s two-day expiration.

On the other hand, Paul’s fellow Kentuckian, Senate majority leader Mitch McConnell (R), said on Tuesday that the USA Freedom Act “undermines American security by taking one more tool from our war fighters at exactly the wrong time.”

The terrorism threat is not diminishing, but increasing, he argues, and the government should not have to jump over hurdles to get data in an unproven program.

Senator McConnell supported several amendments to strengthen the security aspect of the bill. They all failed, partly because senators were worried about upsetting the careful balance of support in the House if they made changes.

The USA Freedom Act is now law. But the debate goes on.