Cato Scholars Differ on USA Freedom Act

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Nearly two years ago, Rep. F. James Sensenbrenner (R-WI) first announced his NSA surveillance reform bill, the USA Freedom Act, at a Cato Institute conference. And in June, the USA Freedom Act of 2015 — a watered-down and reintroduced version of the original — was signed into law. In his 2013 speech, Sensenbrenner declared that this legislation would enact sweeping reforms to intelligence-gathering. "Let me make it quite clear," he said. "It ends the NSA's ability to collect what they call a 'metadata program.'" Sensenbrenner, who as chairman of the House Judiciary Committee had introduced the Patriot Act in 2001, expressed outrage over how that legislation had since been abused. "Put simply, the phone calls we make to our friends, our families, and business associates are private and have nothing to do with terrorism or the government's efforts to stop it."

But in the end, did the law actually accomplish what Sensenbrenner promised? The privacy community — including Cato scholars — remained divided over the bill up until the day it landed on the president's desk. The final version of the bill reauthorized several expiring Patriot Act provisions, but limited bulk collection by stipulating that the government may ask telecom companies for records only when they have "reasonable, articulable suspicion" that a "specific selection term" used to search the records is relevant to a terrorism investigation.

Some organizations and legislators, including Sen. Rand Paul (R-KY), refused to support the bill, depicting it as ultimately a vote for the PatriotAct. Several, such as Rep. Justin Amash (R-MI), pointed to a recent federal court decision which had ruled the government's previous justification for bulk collection, under Section 215 of the Patriot Act, illegal. Amash argued that to pass legislation in the wake of that ruling would only provide the government convenient new legal justification for its spying — which it would interpret broadly.

Cato homeland security and civil liberties analyst Patrick Eddington agreed with this position, writing that the bill "would effectively represent a repeat of the Protect America Act fiasco of the previous decade — an act of Congress that made legal a previously illegal surveillance program that did exactly nothing to protect the country, while costing billions and subjecting Americans to continued mass surveillance."

"Real Patriot Act 'reform' should substantively bar the government from indiscriminate bulk surveillance," he said. "Anything less risks laying the groundwork for another decade of abuse."

On the opposite side of the argument stood some pro-privacy groups; reform minded senators Ron Wyden (D-OR), Pat Leahy (D-VT), and Mike Lee (R-UT); and Cato senior fellow Julian Sanchez. This group held that modest reforms were better than no reforms at all.

Sanchez deemed it "highly unlikely" that the USA Freedom Act could be interpreted as overriding the federal court's rejection of bulk collection. "At that point I think we're simply saying the FISC [Foreign Intelligence Surveillance Court] will pervert whatever language is adopted, however clear, and it doesn't really matter what the legislature does."

While acknowledging the bill's obvious shortcomings, he countered that "It's hard to see how blocking this particular set of reforms makes it any more likely that other important changes to the law will be passed."

"While the reforms embedded in the USA Freedom Act by no means address the full range of surveillance excesses Americans have learned about over the past two years, they represent a significant step in the right direction — and, at long last, an end to the continuous, reflexive augmentation of government powers to intrude into the private lives of citizens," he wrote.