Did the Senate just roll back the government’s surveillance power? Not so fast.

[Commentary] After a great deal of political posturing and brinkmanship, the Senate finally passed the House version of the USA Freedom Act. Finally, some rebalancing of privacy and national security concerns in the post-9/11 world! Except … not so fast. Although the law does prohibit the bulk collection of the metadata linked to all American telephone communications, it arguably will expand the government’s ability to analyze the data it does collect. How is this possible?

Well, in the past, the government collected as much US.telephone metadata as it could, but the Foreign Intelligence Surveillance Court (FISC) only allowed the government to analyze the data if there was a “reasonable articulable suspicion” that a foreign telephone number was associated with specific international terrorist groups. The government would query the database, which contained up to five years of US telephone metadata, to see if that foreign terrorist number communicated with someone inside the United States. If there was a link between the foreign number and a US number, then the government would check what numbers were linked to that US number, and so on. The big question is whether the FISC will permit the government to engage in this expanded program of telephone metadata analysis or whether it will it continue to restrict the analysis of telephone metadata to counterterrorism purposes. The FISC has yet to weigh in on whether the government can expand the use of telephone metadata analysis as a tool of U.S. foreign policy. If the court goes along with the expansion of the use of these analytical tools, then American privacy is more endangered than ever. The irony is that the court’s privacy is rather closely held within the executive branch -- so it’s not clear we will find out what choice it has made anytime soon.

[H.L. Pohlman is a professor of political science at Dickinson College]