The USA Freedom Act Fallout

Michael Policy

It has been about a week and half since the USA FREEDOM Act was passed. Now American’s are beginning to understand that the bill lacks guts.

Same Same, But Different

Sure, it limits telephone metadata. It takes the mass collection of this particular data out of the hands of the NSA and back into the hands of the phone companies themselves. The NSA can still access the material if they have a specific terrorist target with probable cause. Although it doesn’t change a whole lot, people, including myself, applaud the change. It is the first time since the 1970’s- Foreign Intelligence Surveillance Act and Electronic Communications Act- that any palpable change has restricted the NSA’s spying.

The bill passed does increase transparency. It allows companies to disclose more often when they have been tapped for information. It also provides for a friendlier amicus curiae or, “friend of the court”, that will act as public advocates against privacy infringement.

What it does not do is vastly more important. While amicus curiae is made more accessible, they are still not that powerful and will likely be performing blindfolded quite a lot in court. It does not do much to hamper section 702 of the USA PATRIOT Act. The Freedom Act still allows the NSA to record massive amounts of phone calls, access your computer and web cam remotely, and continue to collect electronic communications on millions of Americans. As if that were not enough, it even has a ‘roving wiretapping’ provision, like the Patriot Act, that allows the government to gain access to multiple electronic devices. It also does not do anything to curb Executive Order 12333 signed by President Obama President Ronald Reagan, 34 years ago. Which the NSA has been using for legal basis to siphon off data that goes through data centers owned by Google and Yahoo.

The final effect of the USA FREEDOM Act is similar to taking a single chisel to the side of a mountain.

Despite the Freedom Act this compound will still get plenty of use.

The NSA’s data center located near Bluffdale, Utah. (Credit: Businessinsider.com

Like a Teen That Knows One Parent Will Say Yes

One thing that gave flight to the USA Freedom Act is the second circuit court of appeals court ruling that the government had “erroneously interpreted” the Patriot Act to allow bulk collection on May 7. In the ruling, however, the court deferred any injunction to proper legislation: the already introduced USA FREEDOM Act. Furthermore, the new provisions that the Freedom Act does provide has a six month window for the changes to be fully implemented as the NSA ‘winds down’ -even though it was completely shut down for a time on May 31st. And just days after the Freedom Act passed, Obama administration lawyers had already filed a petition for the FISA court to exempt that ruling from their consideration of indeed allowing the NSA to continue business as usual for the next six months.

Their stance? That the second circuit court of appeals court, the law, does not apply to the government.

Meanwhile… In Cheltenham

Any hope that this may curtail mass surveillance on Britain’s side of things may prove to be a waste. It has long been known Government Communication Headquarters (GCHQ) in Cheltenham, UK has been sharing information with the NSA. Allowing both agencies to sidestep local privacy protections. In March, the Intelligence and Security Committee (ISC) of the UK Parliament confirmed that the GCHQ was conducting mass surveillance on “…a wide range of individuals, the majority of whom are unlikely to be of intelligence interest.” But they still couldn’t bring themselves to condemn the practice; opting instead to insist on laws to regulate the spying.

The Freedom Act has had no appreciable effect on GCHQ

GCHQ located in Cheltenham, UK: business as usual. (Credit: Reuters)

And while the debate was raging in the US to curb some of the powers of the NSA the GCHQ collection was ramping up. In mid May, UK’s Parliament was able to slip an amendment by completely unnoticed that would allow unrestricted hacking into citizen’s computers by the government. The amendment protected law enforcement from being prosecuted for hacking- even without a search warrant.

However, emboldened by the USA Freedom Act, Privacy International has launched a new lawsuit against GCHQ. Besides watchdog groups, there is little pressure on the UK to change its ways. The current Independent Reviewer of Terrorism Legislation, David Anderson, published a 373 page report for Parliament on June 11 that said that the current surveillance programs should continue.

The Struggle is Real

It seems as though no one really knows if these programs are actually effective. After all, all of the 9/11 hijackers were under surveillance when they carried out the attacks, and that was before all of this rampant mass surveillance (or have we been living with Big Brother for a long time?). And several official reports state that no credible terrorist threats have been thwarted by mass telephone metadata collection. Can we be sure that any of the other programs are effective?

Even given the passage of the Freedom Act, we must continue to watch the government to ensure they follow the new restrictions. Everyone understands, including politicians, that not much will change given the new legislation. The government will continue to fight to keep it’s current programs in effect, and the people must fight as well. Instead of a chisel we need dynamite to blow a hole in the mountain of mass surveillance programs.

feature image courtesy of Fragile, Josh Walls and Katie Bowers

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