What the USA Freedom Act giveth, and taketh away

[Commentary] If you are in communication with a foreign-based group that the US government is targeting for the purpose of obtaining “foreign intelligence information,” or even if that foreign-based group knows who you are, then the government will be able to collect your phone records if the current version of the USA Freedom Act becomes law. Indeed, if a request for phone records does not have to be part of an investigation of international terrorism, then the “specific selection term” noted above can be associated with any kind of foreign power -- whether it is a foreign government, a corporation or a nongovernmental organization -- relevant to the conduct of US foreign affairs. Second, in such a case -- that is, under that slightly amended hypothetical government request -- the government would not need to use a “specific selection term” that only “identifies an individual, account, or personal device.” Instead it could use a term “that specifically identifies a person, account, address, or personal device, or any other specific identifier” so long as the identifier “is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought [in this case, phone records] consistent with the purpose for seeking the tangible things.” This convoluted language seems to mean that any “specific identifier” will qualify as a “specific selection term” if it permits the collection of only the phone records that will enable the government to achieve its purpose. So, if the purpose of the government is broad, such as when it is trying to collect “foreign intelligence information” for the purpose of conducting foreign policy, then the “specific identifier” will be quite expansive, too. That, in turn, implies that a very large amount of American citizens’ phone records will still be scooped up by the NSA and analyzed.

Apologies for the legalese -- but it is the loopholes hidden in that legalese that the intelligence community’s lawyers presumably hope we (and Congress!) will be unable to discover. The bottom line is straightforward enough: In terms of the privacy rights of US citizens, the USA Freedom Act, as currently written, will take away more than it will give back. This could be why the White House, and the NSA, are happy to see it pass.

[HL Pohlman is a professor of political science at Dickinson College]