Eleanor Finch
The USA Freedom Act, signed into law by President Barack Obama in 2015, amends the USA PATRIOT Act and changes how the NSA spies on American citizens. The Act has been criticised for allowing the bulk collection of Americans' metadata by phone companies, which is then accessible by the NSA. However, it has also been praised for its potential to protect privacy and civil liberties. This has sparked a debate about whether the Act violates the US Constitution.
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What You'll Learn
Does the USA Freedom Act violate the Fourth Amendment?
The USA Freedom Act, enacted on June 2, 2015, restored and modified several provisions of the Patriot Act, which had expired the day before. The Act imposes new limits on the bulk collection of telecommunication metadata on US citizens by American intelligence agencies, including the National Security Agency (NSA).
The Fourth Amendment of the US Constitution protects people's right to privacy and freedom from unreasonable intrusions by the government. It states that:
> [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The USA Freedom Act requires the NSA to obtain approval from the Foreign Intelligence Surveillance Court (FISC) before demanding that telecommunications companies hand over metadata. However, no "probable cause" Fourth Amendment standard is required to access the database. While the original Act defined an allowable search as "a term used to uniquely describe a person, entity, or account", the House version allows a database search inquiry if it is "a discrete term, such as a term specifically identifying a person, entity, account, address, or device."
The Act's Call Detail Records (CDR) provision permits the targeted collection of telephony metadata, but not the content of any communications. This replaced the NSA's bulk telephony metadata collection program, with bulk metadata now remaining with the telecommunications service providers. The CDR authority provides a "narrowly-tailored mechanism for the targeted collection of telephone metadata for possible connections between foreign powers or agents of foreign powers and others as part of an authorized investigation to protect against international terrorism."
Critics have questioned the need for the business records provision, given the government's ability to seek similar records through a grand jury subpoena. However, not all national security investigations involve criminal activity, so a grand jury subpoena is not always available.
To obtain a FISC order approving a business records application, the government must demonstrate that:
- It is seeking information in an authorized national security investigation conducted pursuant to guidelines approved by the attorney general;
- Where the investigative target is a US person, the investigation is not based solely on activities protected by the First Amendment; and,
- The information sought is relevant to the authorized investigation.
The government must also adhere to attorney general guidelines and minimization procedures that limit the retention and dissemination of any information collected concerning US persons.
While the USA Freedom Act imposes some new limits on the bulk collection of telecommunication metadata, it is unclear if it fully upholds the Fourth Amendment's protection against unreasonable searches and seizures. The Act's provisions allowing access to metadata without a "probable cause" standard and the targeted collection of telephony metadata may raise concerns about potential violations of the Fourth Amendment. However, the Act also includes measures to enhance privacy and civil liberties, such as the CDR provision's requirement for telecommunications companies to retain bulk metadata. The ultimate question of whether the USA Freedom Act violates the Fourth Amendment would likely be a matter for the courts to decide.
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Does the Act allow bulk collection of metadata?
The USA Freedom Act was signed into law by President Obama on June 2, 2015. It was supposed to end the bulk collection of data by intelligence agencies, which was previously authorized under Section 215 of the USA Patriot Act.
The Act amends Section 215 to replace the bulk telephone metadata collection program with a narrower authority for collecting "call detail records" (CDRs). CDRs consist of metadata that show "session-identifying information" for which phone numbers or other identity numbers are contacting which other numbers and when. While the Act prohibits the use of Section 215 for bulk metadata collection, it still allows the collection of a vast amount of phone metadata. The government must show that a specific selection term, such as an individual, account, or personal device, is associated with international terrorism to request records based on that term.
However, opponents of the Act argue that it does allow the bulk collection of Americans' metadata by phone companies, which is then accessible by the NSA. They also argue that the Act does not address other laws that have purportedly violated Americans' Fourth Amendment rights, which protect against unreasonable searches and seizures.
The USA Freedom Act has been described as a milestone and an important victory for whistleblower Edward Snowden, who revealed the NSA's bulk metadata collection program in 2013. However, some have also identified its changes as cosmetic, arguing that intelligence agencies still enjoy a wide range of surveillance powers.
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Does the Act protect privacy and civil liberties?
The USA Freedom Act, signed into law by President Obama on June 2, 2015, has been praised as a bipartisan effort to protect individuals' privacy while ensuring that intelligence and law enforcement professionals have the necessary authority to protect the nation.
The Act prohibits bulk collection under Section 215 of the Patriot Act, the FISA pen register authority, and national security letter statutes. It strengthens the bulk collection prohibition by prohibiting large-scale, indiscriminate collection and allows challenges to national security letter gag orders.
However, opponents argue that it does not adequately protect privacy and civil liberties. They cite that the Act allows the bulk collection of Americans' metadata by phone companies, accessible by the NSA, and does not address other laws that purportedly challenge Americans' Fourth Amendment rights. Civil rights groups and scholars argue that the language allowing the NSA to search metadata from telephone companies is vague and may violate the constitutional rights of innocent people.
Proponents of the Act, including the White House, privacy and civil liberties advocates, and private industry, emphasize that it ends bulk collection, increases transparency, and provides targeted tools to enhance national security. The Act replaces the NSA's bulk metadata collection program with a targeted, narrowly tailored call detail records authority, and it mandates the destruction of information collected if a FISA court application is denied.
While the USA Freedom Act does not completely end bulk metadata collection, it significantly curtails the government's ability to access phone metadata records and introduces important checks and balances to protect privacy and civil liberties while also addressing national security concerns.
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Does the Act allow unconstitutional surveillance?
The USA Freedom Act, passed in 2015, has been a subject of debate regarding its implications for surveillance and whether it violates the US Constitution. The Act amends the USA PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA), making significant changes to how the National Security Agency (NSA) can collect and access data.
One of the key provisions of the USA Freedom Act is its prohibition of bulk data collection. Specifically, it ends the bulk collection of phone records under Section 215 of the PATRIOT Act, FISA pen registers, and national security letter statutes. This includes a ban on the bulk collection of internet data and telephone metadata by the NSA. However, opponents argue that the Act falls short of completely ending bulk data collection, pointing out that it only explicitly mentions phone records and does not address other laws that impact Americans' Fourth Amendment rights.
The Act also introduces a targeted and narrowly tailored Call Detail Records (CDR) authority, which allows the collection of telephony metadata but not the content of communications. This replaces the NSA's previous bulk metadata collection program, where metadata was handed over to the NSA by telephone companies. The new provision requires the NSA to obtain individualized permissions from the FISA court to access targeted information from phone companies storing records.
While the USA Freedom Act has been praised for increasing transparency and ending indiscriminate bulk data collection, critics argue that it still allows for the collection of Americans' metadata by phone companies, which the NSA can then access. This has raised concerns about potential violations of Americans' Fourth Amendment rights and privacy. Some civil liberties groups, such as the ACLU, have supported the Act as a step towards rolling back the NSA's unconstitutional surveillance programs, while acknowledging that it is not perfect and further reforms may be needed to fully protect constitutional rights.
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Does the Act violate the First Amendment?
The USA Freedom Act (also known as the FREEDOM Act) was passed in 2015 with the stated aim of ending the bulk collection of Americans' metadata by the NSA, ending secret laws created by the FISA court, and introducing a "Special Advocate" to represent public and privacy matters. However, the Act has been criticised for not adequately protecting Americans' civil liberties, particularly regarding the Fourth Amendment right against unreasonable searches and seizures.
While the Act requires the NSA to obtain approval from the Foreign Intelligence Surveillance Court (FISC) before accessing metadata, it does not require a "probable-cause" Fourth Amendment standard for this approval. This means that the government can obtain records similar to those in ordinary criminal or civil investigations without any court order, which some critics argue is a violation of the Fourth Amendment. Additionally, while the Act ends the NSA's bulk collection of metadata, it allows telecommunications companies to collect metadata in bulk and make it accessible to the NSA.
The Act also includes a roving wiretap provision, which gives the government the authority to use wiretaps in response to adversaries attempting to avoid detection. While this provision has been upheld by courts in criminal investigations, its inclusion in the USA Freedom Act has sparked debate over whether it violates Americans' privacy rights.
The First Amendment to the United States Constitution prevents Congress from making laws that prohibit the free exercise of religion, abridge the freedom of speech, infringe on the freedom of the press, restrict the right to assemble, or impede the right to petition the government for redress. While the USA Freedom Act does not directly address the First Amendment, it has implications for freedom of speech and privacy, which are closely linked to the First Amendment.
In conclusion, while the USA Freedom Act does not explicitly violate the First Amendment, it has been criticised for falling short of adequately protecting civil liberties, including those related to freedom of speech and privacy. The Act's impact on the Fourth Amendment rights of Americans has been a particular focus of concern, with critics arguing that it does not go far enough to protect against unreasonable searches and seizures of personal information. The debate over the Act's implications for civil liberties highlights the complex balance between national security and the protection of individual rights.
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Frequently asked questions
The USA Freedom Act is a bill that was passed in 2015 to end bulk collection and prevent government overreach. While it has been praised as a step towards protecting constitutional rights, it has also been criticised for not going far enough to protect Americans' Fourth Amendment rights. The answer to this question is complex and depends on various factors and legal interpretations.
The USA Freedom Act was designed to reform and enhance national security and intelligence-gathering programs while also protecting individuals' privacy rights.
The Act prohibits bulk collection under Section 215 of the PATRIOT Act and other authorities, strengthens protections for civil liberties, and increases transparency of the Foreign Intelligence Surveillance Court (FISC).
Yes, the Act replaces the NSA's bulk metadata collection program and requires the agency to obtain targeted, individualised permissions from the FISA court to access relevant information from phone companies.
Some critics argue that the Act does not go far enough to protect Americans' constitutional rights, particularly regarding the collection of metadata by phone companies and other forms of bulk data collection, such as emails and websites.
