So Are We Being Spied on Now or Not?

The Patriot Act is gone, sort of.
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A video camera lens that may be watching you. (Photo: Denniro/Shutterstock)

A video camera lens that may be watching you. (Photo: Denniro/Shutterstock)

On Sunday, several provisions to the Patriot Act expired, including the National Security Agency’s controversial ability to tap into Americans’ phone and email records in bulk. After a House of Cards-worthy showdown in Congress between the act’s proponents and critics, the Senate passed a new measure—the USA Freedom Act—that limits the government’s spying abilities for the first time since 9/11. We’ve written about the Patriot Act and its implications for civil liberties quite a bit over the years here at Pacific Standard. Here’s a round-up of what you need to know in order to run your offices’ water cooler talk this week.

WHAT IS THE PATRIOT ACT?

The Patriot Act is an anti-terrorism measure that expands law enforcements’ abilities to investigate and thwart terrorism. It was passed in the wake of 9/11, when Americans were still reeling from the shock of a terrorist attack at home. This was a classic American response to a perceived threat, Emily Badger reported in 2011:

America has a long—and at times embarrassing—history of curbing civil liberties in times of perceived peril. There were the Alien and Sedition Acts of the late 1700s, authorizing the deportation of immigrants and restricting the free speech of government critics during wartime. Later, there came the internment of Japanese-Americans during World War II, the investigation of citizens suspected of sympathizing with communism during the Cold War and the surveillance of antiwar activists during the Vietnam era.

Americans’ feelings on the Patriot Act are mixed. Most controversial is Section 215, a provision that allowed the FBI to obtain information from third-party persons and businesses by order of a secret court. "Civil liberties groups and librarians' associations, which have long been fiercely protective of reader privacy, quickly raised fears of the FBI using that authority to snoop on circulation records," Justin Elliot wrote in 2013. "The section even became known as the 'library provision.'"

That changed in June of 2013, when—thanks to Edward Snowden, a systems administrator for the NSA—the news broke that the government was actually using the provision to spy on the cell phone, credit card, and Internet activity of millions of Americans. Despite the fact that Americans were surprisingly blasé about government surveillance after the scandal, as Jared Keller reported, when the act was up for renewal earlier this week, it didn't have enough supporters left in Congress to pass as is. But the expired provisions got the chance to live on, albeit in modified forms, in a bill titled the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection and Online Monitoring Act," or the USA Freedom Act for short.

WHAT IS THE USA FREEDOM ACT?

Yesterday, the USA Freedom Act (Real creative name fellas. Might I suggest the Patriot Act 2: NSA’s Revenge instead?) passed the senate and was swiftly signed into law by the president. "This legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs," Obama said in a statement, as reported by the Associated Press.

The main difference: Under the new act, the bulk phone metadata the NSA has been collecting and storing will stay instead with the phone companies themselves. The government can still request access to the records via the Foreign Intelligence Surveillance Act Court, but requests will have to meet more stringent guidelines. For example, as Ars Technica reports, the NSA needs to prove it has "reasonable suspicion that the phone data of a target is relevant to a terror investigation and that at least one party to the call is overseas." But for all the Millennials out there wondering who even uses phones for phone calls anymore, it’s worth noting that its unclear what other kinds of personal data—much of which can be stored and accessed via smartphones—the government will be able to collect under the new act.

DO THESE SURVEILLANCE PROGRAMS STOP TERRORISM?

Probably not, according to a January 2014 policy paper from the New America Foundation. As the authors, Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall wrote:

[O]ur review of the government’s claims about the role that NSA “bulk” surveillance of phone and email communications records has had in keeping the United States safe from terrorism shows that these claims are overblown and even misleading. An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal.

WILL THE USA FREEDOM ACT PROVE MORE USEFUL?

¯\_(ツ)_/¯

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