Court Opinion on NSA Phone Metadata Collection Won't Soon Stop It
The Patriot Act, including the now infamous Section 215, was amended by the House of Representatives when it passed the USA Freedom Act a few days ago. Until the Circuit Court decision, passage of the Freedom Act in the Senate was considered by many to be unlikely due to the opposition of Majority Leader Senator Mitch McConnell, R-Ky., who wanted to reauthorize the Patriot Act unchanged. However, the court ruling could change that. While Sullivan declined to say how she thought the Freedom Act would do in Congress, she did say that Congress would have to respect the court decision. This likely would mean that the few senators who have been fighting changes to Section 215 will agree to modifications such as those contained in the Freedom Act. "A lot of people are trying to spin this in lots of ways," said Ed Black, CEO of the Computer and Communications Industry Association. "I think the odds are pretty good that something close the current Freedom Act will pass." Assuming that the USA Freedom Act does pass the Senate and eventually becomes law, then what? The primary difference between the new act and practices today is that the NSA and other U.S. intelligence agencies would need a warrant to search for metadata, which would presumably be stored at the phone company.Sullivan said that an example might be a situation in which investigators notice a sudden increase in telephone calls of a known terror suspect to the phone of a bomb maker in Yemen. Then, she said, time could be critical. "Every time you have to go to seek a warrant, you have to have a representative of the government verify the information," Sullivan said. "You must meet the statutory requirements, whatever the standard would be at the time." At this point, however, it looks as if the USA Freedom Act is more likely to pass than it might have been before the court decision. Whether this will solve the problems balancing communications surveillance against privacy remains to be seen. For this reason, Black said that he hopes there's a chance to take another look at it fairly soon. "We should have a reasonably modest term for sunset," Black noted. That way, any changes can be made when and if the act is reauthorized.
"Certainly the more legal processes you have, rather than authorizing the metadata being within the NSA versus requiring the government to get a warrant for each selector for each search, the longer it takes," Sullivan said. She said that while most of the metadata that the NSA and other intelligence and investigative agencies use isn't particularly time-sensitive, there are circumstances where it can be.