Why the USA Freedom Act Is Both Desperately Important and Laughably Pathetic

(This post is from our new blog: Unofficial Sources.)

Media coverage of the USA Freedom Act surveillance reform bill has been strikingly schizophrenic — and nowhere more clearly than in two consecutive recent front-page articles in The New York Times.

That’s because how you analyze the bill depends on which of two questions about Congress you think is more important in the wake of NSA whistleblower Edward Snowden’s revelations about a metastasizing U.S. surveillance apparatus.

Those questions are: “Will Congress do anything at all?” And: “Will Congress do enough?”

Some in Congress — led by Senate Majority Leader Mitch McConnell — want the answer to the first question to be: No. In the face of the June 1 sunset of some key provisions of the Patriot Act that the NSA has cited as legal justification for its bulk metadata collection, McConnell simply wants the whole thing renewed.

So to people for whom that would be intolerable — a calamitous moral failing, an abnegation of legislative oversight, a green light for the NSA to do whatever it wants, forevermore — the fact that this “reform” legislation is being seriously considered is a very big deal.

That was the point of view reflected on the front page of Friday’s newspaper of record, published online with the headline: “Patriot Act Faces Revisions Backed by Both Parties.”

Jonathan Weisman and Jennifer Steinhauer announced “a bipartisan wave of support … to sharply limit the federal government’s sweeps of phone and Internet records.” They described an “overhaul” of the Patriot Act, and reached a triumphant conclusion:

The push for reform is the strongest demonstration yet of a decade-long shift from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.

Would that it were so.

Because in the context of the incredibly broad and largely unfettered invasions of privacy here and around the globe exposed by the Snowden revelations, passing the bill would be almost inconsequential — at best a first very little baby step.

That was the point of view reflected on the front page of Saturday’s newspaper of record, published online with the headline: “Why the N.S.A. Isn’t Howling Over Restrictions.”

My immediate thought:

The key reform in the USA Freedom Act, Times reporters Peter Baker and David E. Sanger now pointed out, was an idea “suggested to President Obama in 2013 by Gen. Keith B. Alexander, then the N.S.A. director, who saw the change as a way for the president to respond to criticism without losing programs the N.S.A. deemed more vital.”

The story quoted “one recently departed senior intelligence official” as saying: “This is hardly major change.”

Yes, the bill would end the bulk collection of metadata from domestic phone companies — the single most shocking revelation from the Snowden archives, and arguably the most unprecedented for the NSA, by virtue of its overt focus on monitoring domestic communication. But:

The legislation would still leave an expansive surveillance apparatus capable of tracking vast quantities of data. Some of the most sweeping programs disclosed by Mr. Snowden, particularly those focused on international communications, would remain unaffected. The N.S.A. could continue efforts to break private encryption systems, and information about Americans could still be swept up if originating overseas.

Tapping data lines that go in and out of the U.S., grabbing personal information without a warrant from major content providers like Facebook and Yahoo — no worries.

Sweeping up all non-U.S. content possible — sometimes an entire country’s phone calls at a time. Breaking encryption. Installing malware. Hacking Sim cards. Tracking cellphones. No problem.

Spying on porn habits. Sharing raw intelligence on Americans with Israel. It happens.

Installing shunts on the fiber optic cables that are the backbone of the Internet. Breaking into cell networks. Tapping private links between data centers. S’alright.

Allowing secret laws developed on the fly by a rubber-stamp secret court that the Intelligence Community still doesn’t level with. Spy chiefs who want to “collect it all.” Cost of doing business.

Extraordinary new abilities — like automated transcription of phone calls — that Congress never anticipated, may not even know about, and certainly never establish rules for. Love it or leave it, baby.

The USA Freedom Act is like a surgeon talking about taking a small tumor off of a much larger one. Would you recommend against such surgery, if that was the only one the surgeon was even willing to contemplate?

That’s the bind some pivotal privacy groups find themselves in. Access, the Center for Democracy and Technology, Human Rights Watch and the Electronic Frontier Foundation are among those who say yes, it’s better than nothing. Demand Progress and the ACLU say it’s worse.

Glenn Greenwald noted a year ago, when a similar bill was in play, that there was “a real question about whether the defeat of this bill is good, bad, or irrelevant.”

Ultimately, he concluded: “the last place one should look to impose limits on the powers of the U.S. government is . . . the U.S. government. Governments don’t walk around trying to figure out how to limit their own power, and that’s particularly true of empires.”

Photo: Win McNamee/Getty Images