On June 1, three sections of the Patriot Act expired, only one of which is controversial and frequently used: the National Security Agency’s Section 215 metadata program. There are three people primarily responsible for the NSA’s being stripped of this useful counterterrorism program: Edward Snowden, Rand Paul, and Barack Obama. On June 2, President Obama signed the USA Freedom Act, which replaces the metadata program with a much weaker one. The result is not a catastrophe for our national security, but it does reflect the outcome of a bruising few years for national-security priorities and our intelligence community.
Two years ago, Snowden broke the law to expose the metadata program, feeding details of it (and many other intelligence operations) to the Guardian and the New York Times rather than pursuing the proper official channels. The media, zealous privacy advocates such as the ACLU, and libertarians including Senator Paul used the unlawful disclosures to construct a frightening, and frighteningly misleading, narrative: that the NSA was constantly monitoring what you did with your phone, if not outright listening in on your calls.
This wasn’t true, as many national-security hawks pointed out repeatedly, and President Obama did once or twice. First, metadata is just the numbers called and duration of calls — not the content of the calls, and not even the names of the phone subscribers involved. The program allowed the NSA to store huge amounts of data, but it could be accessed and analyzed only by a tiny number of agents, subject to congressional and judicial oversight. The president bowed to the media firestorm nonetheless, convening a task force to examine intelligence procedures, which produced a number of recommendations that made it into the USA Freedom Act. He backed the bill, even though he had defended the usefulness of the Patriot Act as it existed. The underlying issue was the same, but the politics had changed — and our commander-in-chief went along with the crowd.
The Freedom Act reforms did not go far enough for Senator Paul, who blocked its advancement, repeatedly and single-handedly ensuring that the NSA’s abilities went dark for some time. The practical significance of that blackout is probably not great, but Senator Paul’s crusade against the NSA and politically feasible reforms to it has done much more for his notoriety than it has for anyone’s civil liberties.
Mitch McConnell had the right idea all along — reauthorize the metadata program as is — although the statute should have been clarified to unmistakably authorize the continuation of the program as it exists. (A federal appeals court recently ruled that the law did not authorize collection as broad as that which the NSA has carried out.)
#related#Unfortunately, too many members of his own party still insisted — albeit on more reasonable grounds than Senator Paul — that metadata collection was too intrusive and needed to be restricted. They certainly got some restrictions: Under the USA Freedom Act, metadata will reside with companies and be accessed only when the NSA comes to them with a request tied to a specific investigation. The new law curtails what data can be considered relevant to that request, and, while it will allow 90 days of live data collection, will mean the only past records available are those the companies decide to keep.
Considering the fever pitch that the Snowden controversy reached, we could have ended up with something much worse. In fact, there are a few useful fixes to the original Patriot Act included in the new law. But a president and a Republican party willing to make a more forceful case for the useful powers in the Patriot Act might have secured us something much better.
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