Last week, Congress passed the USA Freedom Act, a very modest reform of the NSA’s surveillance capabilities, still leaving much of what they can do intact.
The main reform is the end of the bulk collection of metadata under Section 215, which has been ruled illegal in multiple courts since Edward Snowden fully disclosed its existence two years ago. In its place will be a system where telecoms archive their data and NSA can only pull metadata after going through the FISA Court that will have a privacy advocate overseeing the proceedings. Although there’s a provision that could allow for a six month “transition period” to this new protocol.
In looking at these changes, Bill Scher argues that civil libertarians lost:
In an interview with Democracy Now just before passage, Edward Snowden confidant Glenn Greenwald triumphantly declared “the only reason why the Patriot Act is going to be reformed is because one person was courageous enough, in an act of conscience, to come forward.” But minutes later, Greenwald conceded that “it leaves overwhelmingly undisturbed the vast bulk of what the NSA does, and it’s very unlikely that there will be another reform bill, which means that the NSA’s core mission and core activities will remain unreformed and unchanged.”
Senate Majority Leader Mitch McConnell, who opposed the USA Freedom Act as too tough on the NSA, thundered on the floor before the vote that the bill amounted to a “resounding victory for Edward Snowden.” But the civil libertarian two-stepping exposes the truth: Snowden lost.
As one former intelligence official told the Daily Beast, “What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing-burger for the privacy community.” Turns out one of the main reform planks – having telecommunications companies instead of the NSA collect personal metadata in bulk – is a logistical efficiency, not a restraint on surveillance. “It’s very expensive and very cumbersome,” said the official. “Good! Let them take them. I’m tired of holding on to this,” said another.
What this reminds me of is the debate in the wake of Obamacare’s passage. In many ways, Obamacare fell way short of the ideal health care legislation. Obama conceded significant reforms in order to get something passed, making deals that left significant inefficiencies and profiteering in the health care industry intact.
But the passage of Obamacare was a victory in some real ways. It was a baby step in the right direction and it put to rest the idea that health care reform of any kind was impossible. The passage of the USA Freedom Act is a victory in the same way. It changes the longstanding dynamic towards giving government agencies greater leeway in national security matters and it put the defenders of an unrestrained national security apparatus on the defensive for the first time in many years.
The “former intelligence official” quoted above seems not to understand the significance of the reform as well. The main problem with the Section 215 collection of metadata wasn’t simply the existence of the metadata itself. It was the potential for that information to be abused. The changes implemented make it harder for NSA to cross that line. That’s a victory, even if it’s a small one in a giant box of other needed reforms.
News items from the last two weeks…
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