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Posted by on Oct 19, 2015 in Uncategorized | 0 comments

The USA Freedom Act: Compromising National Security for the Protection of Individual Liberty Interests

By Beaujeaux Delapouyade

The USA Patriot Act Section 215 has spawned a nation-wide debate regarding Americans’ Fourth Amendment right to be free from unreasonable search and seizure. The Act allowed the National Security Agency to collect bulk telephone data, including metadata from emails, texts, phone calls, and other types of electronic communications. Proponents of the Act argue that it is necessary to aid high-level security officers in the investigation of national terrorism following the 9/11 terrorist attacks. The Act allowed the government to apply for a court order for the mass collection of such data. A court order would only be granted if the government could show a reasonable suspicion that the device was associated with terrorist activity. Opponents of the Act argue that it allows the government to overstep its bounds and unlawfully intrude into Americans’ constitutional right to privacy.

On June 2, 2015, Congress enacted the USA Freedom Act into law through the bicameral and presentment process, pursuant to the United States Constitution Article I Section 7 Clause 2.[1] President Barack Obama signed the Freedom Act into law following the lapse of the Patriot Act provision. The Freedom Act reforms mass-surveillance techniques, placing new restraints on methods the government utilizes to collect data for counterterrorism purposes. The Freedom Act requires the government to seek a court order requesting data directly from the telephone companies. The government must show that the person or device is connected to a terrorist organization. Implementation of the Freedom Act will require companies to be more transparent regarding information it hands over the federal government. [2]

The Patriot Act should have been extended in its entirety because it does not run afoul of the Fourth Amendment. In addition, while the Freedom Act may act as a compromise protecting both individual liberty and national security, the reform may hinder national security efforts in the wake of impending terror threats.

Section 215 of the Patriot Act does not violate American citizens’ privacy interests because the collection of metadata is not equivalent to the content of communications. The Fourth Amendment to the United States Constitution—“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .”—protects individuals from unreasonable government intrusions into legitimate expectations of privacy.[3] In Smith v. Maryland, the Court held the defendant did not have a reasonable expectation of privacy in telephone numbers dialed because data does not reveal intimate details of a conversation, and disclosure of the numbers to the telephone company destroyed any existing privacy interest.[4] Likewise, a person does not have a reasonable expectation of privacy in metadata because a person voluntarily discloses the data to third parties, and the data does not reveal substantive details of conversations.

The collection of metadata may be a government seizure albeit one that is reasonable in the wake of impending threats to national security. The government’s interest in thwarting terrorism threats outweighs minimal privacy concerns in phone data. The application can only be used to collect information concerning non United States citizens, international terrorism, or clandestine intelligence activities. Restrictions on the NSA’s ability to acquire metadata will inhibit the detection of national security threats like the Russian hackers’ cyber intrusion into the White House computer system or a second major terror attack in light of the emergent ISIS regime. In addition, the requirement that phone companies be more transparent regarding the information provided to the federal government exposes clandestine operations to foreign intelligence threats frustrating the entre purpose of a clandestine operation: secrecy. Accordingly, the government’s interest in national security is not something our country should compromise.

 

[1] See U.S. Const. I § 7, cl. 2; https://www.law.cornell.edu/anncon/html/art1frag23_user.html.

[2] http://www.npr.org/sections/thetwo-way/2015/06/02/411534447/senateis-poised-to-vote-on-house-approved-usa-freedom-act.

[3] U.S. Const. amend. IV.; https://www.law.cornell.edu/constitution/fourth_amendment; Katz v. United States, 389 U.S. 347, 359 (1967).

[4] 442 U.S. 735, 740 (1979); see also United States v. White, 401 U.S. 745, 749 (1971) (a person does not have a constitutionally protected privacy interest in communications voluntarily conveyed to a third party because the third party may then turn the information over to the police).