The USA Freedom Act
Supporters of the National Security Agency inevitably defend its sweeping collection of phone and Internet records on the ground that it is only collecting so-called “metadata”—who you call, when you call, how long you talk. Since this does not include the actual content of the communications, the threat to privacy is said to be negligible. That argument is profoundly misleading.
Of course knowing the content of a call can be crucial to establishing a particular threat. But metadata alone can provide an extremely detailed picture of a person’s most intimate associations and interests, and it’s actually much easier as a technological matter to search huge amounts of metadata than to listen to millions of phone calls. As NSA General Counsel Stewart Baker has said, “Metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.” When I quoted Baker at a recent debate at Johns Hopkins University, my opponent, General Michael Hayden, former director of the NSA and the CIA, called Baker’s comment “absolutely correct,” and raised him one, asserting, “We kill people based on metadata.”1
It is precisely this power to collect our metadata that has prompted one of Congress’s most bipartisan initiatives in recent years. On May 7, the House Judiciary Committee voted 32–0 to adopt an amended form of the USA Freedom Act, a bill to rein in NSA spying on Americans, initially proposed by Democratic Senator Patrick Leahy and Republican Congressman James Sensenbrenner. On May 8, the House Intelligence Committee, which has until now opposed any real reform of the NSA, also unanimously approved the same bill. The Obama administration appeared to welcome the development, although on May 20 it managed to convince the House Rules Committee to water down the bill to such an extent that several important civil liberties groups have now withdrawn their support of the bill—including the Center for Democracy and Technology and the Electronic Frontier Foundation. On May 22, the House passed the bill in its compromised form, 303–121.
For some, no doubt, the very fact that this bill has attracted such broad bipartisan approval will be grounds for suspicion. After all, this is the same Congress that repeatedly reauthorized the 2001 USA Patriot Act, a law that was also proposed by Sensenbrenner and on which the bulk collection of metadata was said to rest—even if many members of Congress were not aware of how the NSA was using (or abusing) it. And this is the same administration that retained the NSA’s data collection program, inherited from its predecessor, as long as it was a secret, and only called for reform when the American people learned from the disclosures of NSA contractor Edward Snowden that the government was routinely collecting phone and Internet…
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