On the heels of a decision by the U.S. Court of Appeals for the Second Circuit holding that the government had overstepped its bounds with bulk collection of telephone metadata under Section 215 of the USA PATRIOT Act, the House on Wednesday voted to pass the USA FREEDOM Act of 2015. This NRA-backed legislation would reauthorize Section 215, which expires on May 22, but with significant curbs to prevent its misuse against Americans who are under no individualized suspicion of wrongdoing.
As we stated last week in reporting on the Second Circuit decision, a fundamental flaw behind most types of gun control is that it claims to go after bad guys by primarily burdening good guys. The same defect applies to collecting telephone metadata concerning ordinary Americans on the off-chance it might later prove useful when targeting a legitimate threat. The USA Freedom Act would reform telephone metadata collection under Section 215 of the PATRIOT Act to ensure it was more narrowly and appropriately focused. Bulk collection of the sort at issue in the Second Circuit litigation would be prohibited.
Under the bill, the government would need a court order from the Foreign Intelligence Surveillance Court (FISA Court) to gain access to call records retained by telecommunications companies. Applications for such orders would require use of a “specific selection term,” that contains a specific identifier for the target of the collection and that would be used to “limit, to the greatest extent reasonably practicable, the scope of information sought consistent with the purpose for seeking” the collection authority.
Such identifiers could not, moreover, simply identify a broad geographic region, such as an area code or zip code. The government would additionally have to produce a statement of facts showing that “there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term … are relevant to [an authorized] investigation” and that “there is a reasonable, articulable suspicion that such specific selection term is associated with a foreign power [or an agent of a foreign power] engaged in [or preparing for] international terrorism ….” To delve more deeply into gathered records, the government would have to produce further specifying information, including “session- identifying information” or a “telephone calling card number identified by the specific selection term ….”
The government would also have to develop procedures that “require the prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information ….” Oversight of these procedures would be provided by the inspector general. Commercial entities that are required to produce information would have to be compensated for the “reasonable expenses occurred” in doing so.
To be sure, Americans are still learning of the scope and enormity of the Obama Administration’s snooping into their daily lives and activities. The USA FREEDOM Act does not remedy every possible overreach in this regard, but it represents a step in the right direction and a reaffirmation of America’s commitment to individual privacy and to making government accountable to the people … rather than the other way around.