For the first time since the aftermath of the 9/11 terrorist attacks, Americans can pick up their telephones in relative privacy.

Some of the most objectionable components of the Patriot Act — the controversial federal law used to facilitate the National Security Agency’s mass gathering of phone records without having to show probable cause or even seek a warrant — are no more, having been allowed to expire on Sunday night. That practice of collecting phone metadata had not only been sharply criticized by legal experts, but determined to be illegal last month by a federal appeals court.

Congress on Tuesday replaced parts of the law with the milder USA Freedom Act, which would allow the noxious phone records provision to be reinstated for a six-month “transition period” before ending it permanently. Under the Freedom Act, those records will remain in the hands of the phone companies that own them; specific records within them — not bulk data — would be made available to the government only through an order of the Foreign Intelligence Surveillance Court.

President Obama made good late Tuesday on his earlier promise to “sign it as soon as I get it.” The Freedom Act is now law.

Bush_signs_Patriot_Act_2001

President George W. Bush signs the Patriot Act into law on Oct. 26, 2001. NSA officials subsequently used it to routinely gather domestic phone records of Americans, a practice that a federal appeals court last month ruled illegal.

White House

Though it’s not yet clear whether the government will temporarily resume its bulk collection of phone records, civil liberties advocates are nevertheless describing the Freedom Act as the most significant surveillance reform measure in more than 25 years. It stops the virtually unchecked expansion of governmental intrusion into Americans’ private lives that had grown steadily since 2001.

While eventually ending the bulk collection of phone records, the Freedom Act restores other provisions of the Patriot Act that allow surveillance of suspicious individuals not connected to terrorist groups — so-called “lone wolves” — and enable roving wiretaps permitting authorities to monitor criminal suspects who frequently change telephones without seeking new court orders for each new phone.

As has been widely reported, the lone wolf provision has never actually been used, but the ability to obtain a roving wiretap approval has been called “essential” to terrorist investigations by FBI Director James Comey. We believe both are reasonable, targeted provisions that, used properly under court order, potentially serve useful purposes in ensuring the safety of the American people.

Though the Patriot Act is well known, it must always be noted the NSA’s use of it for bulk phone record collection was a closely guarded secret until former NSA contractor and one-time Hawaii resident Edward Snowden famously leaked an avalanche of classified government documents detailing the practice to journalists in 2013.

The debate that has been playing out in Washington over the past week would not have taken place were it not for Snowden, who has lived for the past two years in Moscow and would face charges under the Espionage Act should he ever return to the United States.

Roundly excoriated by administration and military officials then for allegedly compromising national security by disclosing U.S. strategies to monitor terrorist groups, Snowden has since been widely lauded elsewhere for exposing top-secret global programs not only to indiscriminately monitor phone records, but e-mail, instant messaging, social media activity and more.

Simply put, the debate that has been playing out in Washington over the past week would not have taken place were it not for Snowden, who has lived for the past two years in Moscow and would face charges under the Espionage Act should he ever return to the United States — charges which, according to whistleblower advocates, prohibit him from arguing that his disclosures to the press were justified because they revealed illegal practices.

President Obama, no Snowden fan, came out against the bulk gathering of phone metadata 1½ years ago. And in a vivid illustration of how politically mainstream Snowden’s concerns over surveillance have become, U.S. Senate President Mitch McConnell’s efforts to amend the Freedom Act and allow phone record collection to continue were rebuked Tuesday in a 67-32 vote that is being called an embarrassing defeat, largely at the hands of McConnell’s own party.

Edward Snowden

Edward Snowden

These concerns perhaps resonate a bit more deeply here in Hawaii, where Snowden obtained the records to make his case and where NSA staff at the Capt. Joseph J. Rochefort Building in central Oahu eavesdrop on North Korea and China, as they have for the past 18 years. Those spying capabilities are essential to an effective and modern national defense, but residents here and throughout the United States are rightly outraged by government programs that use the same means to surveil ordinary Americans.

U.S. Sen. Mazie Hirono, a member of the Senate Armed Services Committee and the Senate Intelligence Committee, applauded the Freedom Act as “a key first step.”

“Our government needs appropriate surveillance and anti-terrorism tools to keep us safe, but it’s Congress’ job to ensure those tools strike the right balance between national security and protecting our privacy rights,” said Hirono in a statement released Tuesday. “The Patriot Act’s bulk phone records collection program does not strike the right balance. I agree with the U.S. Second Circuit Court of Appeals and a large bipartisan coalition that the NSA’s bulk collection of phone records exceeds Congressional authority.”

We agree with Hirono’s “first step” description, but protecting the rights of citizens needs more effort.

The Freedom Act doesn’t effect mass surveillance taking place under Section 702 of the Foreign Intelligence Surveillance Act or Executive Order 12333. The NSA uses those provisions to force Internet companies to cough up personal user data and telecommunications companies to assist with mass fiber optic cable tapping of traffic coming into the this country, according to Human Rights Watch. Such indiscriminate mass data gathering “unnecessarily and disproportionately intrude[s] on the privacy of hundreds of millions of people who are not linked to wrongdoing.”

Still, the Freedom Act is a modest step back toward the fundamental principles of liberty and freedom upon which this country was founded. While you’re unlikely to find any thank-you speeches to Edward Snowden in the Congressional Record, there’s no doubt that his actions pointed lawmakers in the right direction.

In case you want to phone a friend to share the good news, don’t worry — the government won’t be collecting records of the call.

What it means to support Civil Beat.

Supporting Civil Beat means you’re investing in a newsroom that can devote months to investigate corruption. It means we can cover vulnerable, overlooked communities because those stories matter. And, it means we serve you. And only you.

Donate today and help sustain the kind of journalism Hawaiʻi cannot afford to lose.

About the Author