It’s tempting to hail the passage yesterday of the subtly-named USA Freedom Act as a victory for civil liberties in America and a step toward a healthy recalibration of the government’s surveillance policies. But if that’s your feeling today, you might want to think twice.
Not only are the changes the Freedom Act makes to existing practices relatively minor, both parties have signed on with the dramatic expansion of surveillance on law-abiding Americans that occurred after September 11. And both will continue to support it.
The Freedom Act does take the bulk collection of Americans’ telephone records out of the hands of the National Security Agency and leaves those records with the phone companies; it sets up procedures for the NSA to get access to those records when it wants to. But the truth is that this program wasn’t particularly useful for the NSA to begin with. The government has been unable to point to a single terrorist attack that was thwarted by the use of these records. Not only that, just last month an appeals court ruled that the bulk collection program went way beyond anything envisioned by the section of the USA Patriot Act that was used to justify it, and it was therefore illegal.
That doesn’t mean this new law isn’t significant, because anything that dials back the surveillance contained in the Patriot Act is significant. But let’s not forget that had Edward Snowden not revealed the existence of this program, the Obama administration would have been happy to keep it secret from the public indefinitely. It was only once the program’s existence was revealed that President Obama came out in favor of taking the records out of the NSA’s hands. Even if many Republicans (including Mitch McConnell) would have preferred to keep the bulk collection going as it was, we still have a bipartisan preference in Washington for keeping the gargantuan surveillance apparatus we set up after 9/11 in business.
You might not have expected that from Barack Obama if you were a liberal who supported him over Hillary Clinton in the 2008 primaries, concluding that he was the dove while she was the hawk because of his opposition to the Iraq War. As a senator, Obama had been quite active in proposing reforms to the government’s surveillance powers; as president, most of what he advocated has fallen by the wayside.
And is Clinton going to move to restrict the government’s surveillance powers if she’s elected president? There’s no particular reason to believe she will. Up until now Clinton has been vague about what she might do when it comes to surveillance; when she’s asked about it, her answers tend to go like this: Yes there are concerns about privacy, we have to balance that with security, it’s something I’ll be thinking about. Yes, she supported the Freedom Act, but it remains to be seen whether she’ll go into detail about any other particular type of surveillance she’d like to restrict.
And let’s not forget that the NSA and other government agencies are certain — not possible, not likely, but certain — to come up with new ways to spy on Americans as new technologies become available. Just as the NSA did with the bulk phone data collection, they’ll probably take a look at earlier laws and decide that there’s a legal basis for whatever new kind of surveillance they want to begin — and that it’s best if the public didn’t know about it.
Indeed, just this week an investigation by the Associated Press revealed that the FBI is using aircraft with advanced cameras to conduct investigations without warrants. That’s a relatively mundane use of technology, but there will always be new tools and capabilities coming down the pike, and the impulse will always be to put them into operation, then figure out afterward if it’s legally justifiable.
The story of the bulk telephone data collection tells us that the only thing likely to restrain the expansion of government surveillance is public exposure. If you’re hoping that politicians who care about privacy will do it on their own, you’re likely to be disappointed.