The government might still see your phone data – but you won’t know it

[Commentary] With surveillance issues very much in the news, I want to follow up on my last post — which argued that it is possible that the new USA Freedom Act might actually broaden the government’s program of collecting and analyzing telephone metadata. The wording of the law might allow the program to shift from a tool linked only to counterterrorism to one that can be used to analyze such data for the broad purpose of conducting American foreign policy. The question is unsettled because the new law (in Section 104) explicitly gives the Foreign Intelligence Surveillance Court (FISC) authority to impose additional “minimization procedures” on the government. The Foreign Intelligence Surveillance Court (FISC) could conceivably use that power to confine the metadata program to its original counterterrorism purpose. Ironically, though, we may not find out what, if anything, the FISC does with its power — that is, whether it is closing the curtains on Americans’ privacy or opening them even wider than before.

I fear we are once again likely to be in the dark about exactly what the National Security Agency is doing with our telephone metadata. Why? After all, the new law hoped to make FISC proceedings more transparent. It even requires the Director of National Intelligence (DNI), “in consultation with the Attorney General,” to conduct a declassification review of each decision, order, or opinion issued by the FISC that includes “a significant construction or interpretation” of any provision of law and make it publicly available “to the greatest extent practicable.” The USA Freedom Act aims to be a step in the direction of privacy and transparency, but I fear it is an insidious step in the other direction. Worse, the American people will be left in the dark about whether the government is analyzing international and domestic telephone metadata more, not less, than it did prior to its passage.

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