What comes after NSA bulk metadata collection?

Posted Jan 4, 2016 by Brett Wilkins
The National Security Agency recently announced an end to its highly controversial—and according to a federal appeals court, illegal—bulk collection of metadata from Americans' domestic phone calls.
Edward Snowden  NSA whistleblower
Edward Snowden, NSA whistleblower
Former NSA whistleblower Edward Snowden, who remains exiled in Russia, exposed the global scope of the NSA surveillance program nearly two years ago, shocking the world with revelations that the agency was spying not only on phone calls but also on the social media profiles of an unknown number of users. The NSA also infiltrated popular online gaming and social media communities such as World of Warcraft and Second Life as part of its global surveillance program of Americans and foreign nationals, an effort which collected billions of phone and electronic records, including those of close allies and other world leaders, corporations and even the Pope.
The NSA's announcement that it was ending the bulk metadata collection program was hailed as a victory by many observers. Score one for Snowden and privacy, right?
Not so fast. The NSA is still going to be collecting the metadata from millions of Americans' phone conversations. The USA Freedom Act, which replaced the USA Patriot Act provision allowing bulk metadata collection, gave the NSA six months to complete an "orderly transition" to the new regimen. That 180-day period ended on December 1. Now, phone and Internet companies will retain customer data, which the NSA may access if it obtains a warrant from secretive courts set up under the Foreign Intelligence Surveillance Act (FISA).
Instead of bulk collection, "specific selectors" (a phone number, for example) are now required for data collection. The NSA then has six months to request these selectors before again going before the FISA court to seek renewed authority. There are exceptions to even these rules. Chief among these is a request by the NSA to retain its records for the past five years until the end of February 2016. Additionally, an executive order issued by President Ronald Reagan could be interpreted to authorize continued bulk metadata collection if it is “incidentally collected in the course of a lawful foreign intelligence investigation."
A spokesman for President Barack Obama's National Security Council (NSC) called the changes under the USA Freedom Act "a reasonable compromise" that protects both national security and privacy.
While Snowden has called the end of the NSA bulk metadata collection a "profound" victory which he chalked up to "the power of an informed public," other privacy advocates criticized the USA Freedom Act.
“The bill doesn’t go nearly far enough,” argued Jameel Jaffer, deputy legal director of the American Civil Liberties Union (ACLU). Jaffer said that the Freedom Act made "only incremental improvements, and at least one provision—the material support provision—would be a step backwards." Jaffer was referring to a controversial section of the Patriot Act punishing support or affiliation—including humanitarian aid—for US-designated terrorist organizations with 15 years imprisonment. The Freedom Act increases the maximum sentence for material support to 20 years behind bars.
David Segal, executive director of the Internet freedom group Demand Progress, took his criticism of the Freedom Act a step further.
"USA Freedom actually made Americans less free," Segal asserted. "It does not end mass surveillance and could be interpreted by the Executive branch as authorizing activities the US Court of Appeals for the Second Circuit has found to be unlawful." Segal called on Congress "to be fearless in its pursuit of genuine, far-reaching reform.”
However, the majority of advocates have expressed satisfaction with the incremental reforms offered by the new law and relief at what many believe is the end of the worst of the NSA's bulk metadata collection.
"Ending the mass surveillance of private phone calls under the Patriot Act is a historic victory for the rights of every citizen," Snowden wrote in a June op-ed piece in the New York Times, while cautioning that "the right to privacy—the foundation of the freedoms enshrined in the United States Bill of Rights—remains under threat."
"While not as powerful as a comprehensive reform bill banning bulk surveillance under all legal authorities, passing USA Freedom is a step in the right direction," wrote Rainey Reitman and Mark Jaycox of the San Francisco-based Internet freedom advocacy group Electronic Frontier Foundation. "As we consider the merits of USA Freedom we also need to keep our eye on the ball. Some members of Congress want to reauthorize the Patriot Act and renew the phone records program as it exists today, something we all must join together to fight."