Bulk surveillance collection by the National Security Agency (NSA) and other government agencies were doomed to change after the mass leak by Edward Snowden in 2013. The revelations of that single interview sent shock waves across the globe as American citizens and allies of the US realized simultaneously how much content was being collected and analyzed. Both sides are claiming a win with the USA Freedom Act; privacy advocates claim a win limiting bulk collection, while security proponents maintain the new Act allows collection within relevance.
What the Act Changes
The US Patriot Act allowed unprecedented collection of bulk records from the phone companies on every single US citizen and for every call placed outgoing from the US to other countries. Phone companies often kept these bulk records for up to 5 years, allowing a long look back period for security agencies. Information collected included user, number, location, duration and the second tier. The second tier collection allowed data collection on any person that the target called within the collection period. This essentially provided data collection on a scale never before done in the world.
The USA Freedom Act changes the nature of the data collection from one of bulk collection to one of relevant collection. This is where both sides of the privacy-security argument are placated. Bulk collection of phone calls are removed, but essentially security agencies only need to draw a relevance to national security or concern to be able to maintain their collection efforts, including the second tier collection. Records will need to be kept by phone companies for 18 months instead of 5 years. In essence, anyone who becomes of interest to the government and meets the “relevance” test is still open to phone data collection.
The relevance test of the USA Freedom Act will be administered by the Foreign Intelligence Surveillance Act’s Court. Before this act the test was conducted in closed and secret meeting and was not required to disclose its findings. With the new act the court will be required to periodically disclose its more important decisions. It will also allow external arguments in regards to cases that infringe on privacy rights of citizens.
A privacy advocate for citizens was also added to the FISC broadening the path to privacy for US citizens. However, the Act does not change any of the surveillance programs listed under Section 702 of the FISA Amendments Act. This section was formerly a secret section dealing with the bulk collection of surveillance upon foreigners, which includes mass amounts of communications of US citizens as well.
A Tiny Step Forward
Although both sides are claiming a win with this new legislation, the USA Freedom Act is very limited in its application. The Act does not touch a number of other bulk data collection efforts by US security agencies such as PRISM (read more about PRISM here) which collects bulk data on American citizen’s use of the Internet. There are still many other surveillance programs previously enacted that will also remain untouched by this Act.
Furthermore, the new act, allows bulk collection of phone data for an extended 180 days, allowing 6 months of unfettered phone data collection of every single person in the US and all their foreign outgoing calls. It also does not change the infamous “allies spying” apparatus that allows the US to spy on the communications of any foreigner, or any call destined outside the US.
The USA Freedom Act for all intents and purposes is a move in the right direction, but its actual application in limiting bulk surveillance collection is quite small and could be inconsequential depending on how relevance is determined by the FISA court.