After much manufactured drama, the USA Freedom Act (which stands for Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring) has been signed into law by president Obama, modifying key provisions of the USA Patriot Act (which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism).
As I have said before, you know that any legislation that has such contrived and tortured acronyms has to be a piece of rubbish intended to either hide something truly noxious or is utterly useless and is meant to provide window dressing to hide inaction.
I suspect that the former was true for the Patriot Act and the latter is largely true for the Freedom Act. It is not that the Freedom Act does not do anything at all. As Dan Froomkin says:
After Snowden’s leak of NSA documents revealed it, the program was repeatedly found to violate the law, first by legal experts and blue-ribbon panels, and just last month by a federal appellate court. Its rejection by Congress is hardly a radical act — it simply reasserts the meaning of the word “relevant” (the language of the statute) as distinct from “everything” (how the government interpreted it).
At the same time, the Freedom Act explicitly reauthorizes — or, rather, reinstates, since they technically expired at midnight May 31 — other programs involving the collection of business records that the Bush and Obama administrations claimed were authorized by Section 215 of the Patriot Act. In fact, even the bulk collection of phone records, which was abruptly wound down last week in anticipation of a possible expiration, may wind up again, because the Freedom Act allows it to continue for a six-month transition period.
And while the Freedom Act contains a few other modest reform provisions‚ such as more disclosure and a public advocate for the secretive Foreign Intelligence Surveillance Court, it does absolutely nothing to restrain the vast majority of the intrusive surveillance revealed by Snowden.
It leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that while ostensibly targeted at foreigners nonetheless collect vast amounts of American communications. It won’t in any way limit the agency’s mass surveillance of non-American communications.
But even this modest step is a major vindication of the actions of Edward Snowden. His revelations have created so much anger that it was impossible for even Congress to do nothing at all. Senate majority leader Mitch McConnell’s futile efforts to renew the Patriot Act unchanged seemed to be driven to a large extent by his desire to not allow Snowden and his supporters the pleasure of claiming credit for forcing changes. He condemned the Freedom Act, calling it a ‘”resounding victory for Edward Snowden.”
That Snowden has been so effective in mobilizing public opinion against widespread data gathering by the NSA and has reached the level of becoming a folk hero can be seen by the fact that in a court case, prosecutors want the judge to ban his name from even being mentioned for fear that it would sway the jury, since the prosecution is using information gleaned using some of the methods that Snowden exposed. And Lincoln Chafee, Republican-turned Independent-turned Democrat, in announcing that he is seeking the Democratic nomination for president has called for Snowden to be allowed home. It will be interesting to see how the other Democratic candidates (Sanders, O’Malley, and Clinton) respond to that call.
But you can be sure that the NSA will find some way to continue what it has been doing all along, despite the fact that the USA Freedom Act ostensibly puts some restrictions in place. They have already tried to get the secret FISA court to allow it to continue as before, at least temporarily.
We have to understand that the NSA is a rogue agency that does not care about the law or the constitution, just like the FBI was in Hoover’s time. In reading the book The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI by Betty Medsger, you see how such agencies operate. Whenever Congress discovered some illegal activity by the FBI and ordered it to stop, Hoover would simply give it a new name. When asked by Congress or the media about it later, the agency would reply that the program no longer existed when in fact it was continuing as before.
But the very fact that the NSA and FBI and CIA have to resort to deeper and deeper levels of subterfuge and outright lying to hide their activities increases the risk of further exposure and thus Snowden has achieved a major victory.