Undercutting the Patriot Act Is a Major Win for Rand Paul and Edward Snowden

While its successor may be full of ways for intelligence agents and law enforcement to invade privacy, the demise of the Patriot Act’s bulk collection of phone records is a major accomplishment for Sen. Rand Paul, for Americans suspicious of government intrusion and, above all, for Edward J. Snowden.

It is Snowden who deserves most of the credit for the expiration of the act’s most onerous provisions, which went out of effect at midnight Sunday. Now in self-exile in Russia and facing espionage charges at home, Snowden revealed how the National Security Administration was scooping up enormous masses of the private records of ordinary citizens under the guise of fighting terrorism. President Barack Obama and many other politicians, along with intelligence officials, denounced that courageous act by the onetime NSA contractor, but the disclosure resonated strongly with Americans who harbor a suspicion of government that dates back to before the American Revolution.

Two Pew Foundation surveys published in May found that “Americans feel privacy is important in their daily lives in a number of essential ways.” An article summarizing the surveys went on to say that very few “feel they have a great deal of control over the data that is collected about them and how it is used” and that Americans have “exceedingly low levels of confidence in the privacy and security of the records that are maintained by a variety of institutions in the digital age.”

Thus Sen. Paul, a candidate for the Republican presidential nomination, was speaking for many when he pressed his fight, begun in 2011, against intrusive provisions of the Patriot Act. The worst provision of the law—Section 215—permitted the NSA to collect phone records in bulk. That allowed the intelligence agency to trace telephone calls in a way that could reveal intimate details of a person’s life.

As Democratic Sen. Ron Wyden of Oregon told his colleagues during the Senate debate Sunday evening, Section 215 permitted the government to know “who you call, when you call, and where you are calling from.” He noted that it wasn’t necessary for the government to actually listen to a conversation in order to have information that might be used against you in some way. If, Wyden said, law enforcement “knows you called a psychiatrist three times after midnight … when government has this kind of information, it is a threat to liberty.”

Though the people may be on Paul’s side, he is scorned by most Democrats, many fellow Republicans and the national political media, which portray his actions as a stunt to pep up his presidential campaign rather than an effort to deal with the substance of the issues he raised.

Paul pointed out a major weakness in the successor to the Patriot Act, known as the USA Freedom Act. The Freedom Act was overwhelmingly passed by the House, controlled by conservative Republicans. It now is before the Senate, and differences between the two chambers over the bill have to be resolved before it can go to President Obama for his signature.

Under the Freedom Act, the records of many millions of phone calls would no longer go to the NSA, where such data has been stored. Instead they would remain with the phone companies. Intelligence agencies could retrieve the records only with the approval of the Foreign Intelligence Surveillance Court, which operates in secret.

“We may be replacing one form of bulk collecting with another,” Paul told the Senate on Sunday. Record collection will continue, he emphasized. “Records will be sucked up by computers, but the computers will [instead] be at the phone companies.”

The phone company provision is backed by two of the candidates for the Democratic presidential nomination.

On “Meet the Press” on Sunday, moderator Chuck Todd said to U.S. Sen. Bernie Sanders, a Vermont independent, “… the government is going to be asking corporate America to keep this data. … You’re comfortable with that?” “No, I’m not,” replied Sanders, who is seeking the presidential nomination as a Democrat. “But we have to look at the best of bad situations.”

The leading Democratic candidate for the presidency, Hillary Clinton, wrote on Twitter early in May that “Congress should move ahead now with the USA Freedom Act—a good step forward in ongoing efforts to protect our security & civil liberties.”

On Monday I talked to representatives of the Electronic Frontier Foundation, which has fought hard against the bulk collection of telephone records. They were cautiously optimistic about the Freedom Act. In a conference call with reporters, one of them said: “The USA Freedom Act will shift dramatically the way government gets information in bulk. Now the [phone] companies will keep the information and will turn over the information if approved by the FISA court [Foreign Intelligence Surveillance Court]. It doesn’t go all the way. We’re entrusting the companies to follow the law. Our journey has just begun to rein in the NSA.”

A post by the Electronic Frontier Foundation on its website Sunday night pointed to the length of the journey. The headline on the article read, “Don’t Worry, the Government Still Has Plenty of Surveillance Power If Section 215 Sunsets.” The article explained that “the national security investigators’ toolbox” still has plenty of implements: continued use of dialed number recording, known as pen registers, for national security or criminal investigations; collection of business records from transportation and storage companies; grand jury power to subpoena records; the use of something called national security letters to allow records to be collected from telecommunications companies, financial institutions, credit reporting bureaus and other repositories.

All this adds up to a lot of possible loopholes, the biggest one being the Freedom Act’s reliance on the phone companies, which are part of a web of telecommunication companies, Internet providers, tech companies and others on the information superhighway that work hand in hand with the federal government. We won’t know how these companies, dependent on the federal government in many ways, will work with the intelligence agencies. Most important, we won’t know how the secretive FISA court will regulate the process. As the Electric Frontier Foundation said, the journey to bring the national security apparatus under control has just begun.