Dragnet surveillance of American's phone records is over, sort of. Somewhat lost in the Mitch McConnell-manufactured drama of the eventual passage of the USA Freedom Act is the actual substance of the new law—President Obama signed it early Wednesday morning. So
here's a quick rundown of the new surveillance regime, as well as what part of the old is still in place.
What happens to bulk collection of phone records? This was, of course, the big one in the bill—the program that Edward Snowden revealed that sweeps up all of our phone metadata for the NSA to hold and the intelligence community to use. The NSA shut it down temporarily while the Senate floundered and allowed its authorization to lapse, but it's cranking it back on now to run for the next 180 days while the whole program transitions to telecommunications companies holding the records. The collection still takes place, in other words, but the information won't be right at the intelligence agencies' fingertips. They will have to present court orders to the companies in order to get the information. The administration hasn't said what they're going to do with all the information that they currently hold, all the pre-reform data.
What about the Patriot Act? That law still exists, but this law updated and reformed three provisions that expired at the end of May. So this new law essentially works in tandem with the rest of that law. Those other two provisions were roving wiretaps—allowing the wiretaps to follow an individual rather than a device, so that surveillance could be maintained on a suspect regularly changing devices—and the so-called "lone wolf" terrorist surveillance. That last one has actually never been used. It allows the intelligence community to follow someone with no known ties to terrorist organizations. There's still a lot in the law, including Section 215—the provision that the government was using for dragnet surveillance—that allows the government to suck up huge amounts of information. That includes lots of information from our internet records, business records, medical records, travel records, etc. But Section 215 has new limits, prohibiting the government from "grabbing, for example, all information relating to a particular service provider or area code."
What about transparency? There have been some improvements there.
The new law gives private companies more leeway to publicly report information about the number of national security surveillance demands they receive. And it requires declassification of FISA Court opinions containing significant legal decisions, or a summary if declassification is not possible. That is designed to prevent secret interpretations such as the one that allowed bulk collection of U.S. phone records.
It also adds a bit of advocacy for privacy in the FISA Court, an amici curiae board of experts in privacy and civil liberties, intelligence collection, telecommunications, or other relevant areas. That potentially puts an adversary in this court that has never had that before.
On the whole, there's progress here. If nothing else, there's been tremendous progress in Congress. Enough members of Congress—in both the House and the Senate—not cowed by Mitch McConnell's threats of imminent doom if they allowed these provisions of the Patriot Act to expire. That irrational fear, exploited by our political leaders for the past 14 years, did not prevail this time. That gives just a glimmer of hope that still-needed reforms might just be thinkable.