Under the legislation passed Thursday, instead of the NSA collecting and housing the metadata from every phone call made to and from the United States, that data will remain in the hands of the telecoms. Previously, there were no laws barring the NSA from searching the data carte blanche, although the agency promised it would only do so if it had a “reasonable, articulable suspicion” against a terrorism target.
The USA Freedom Act, however, demands that the NSA get approval for a search from the Foreign Intelligence Surveillance Court before demanding that the telecoms hand over metadata. However, no “probable-cause” Fourth Amendment standard is required to access the database.
“The result is a bill that will actually not end bulk collection, regrettably,” said Rep. Zoe Lofgren, a Democrat from California who voted against the bill.
Under the act, a database search inquiry is allowed if it is “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.” Until Tuesday, an allowable search under the USA Freedom Act was defined as “a term used to uniquely describe a person, entity, or account.”
That nuanced change, lobbied for by the Obama administration at the 11th hour, was among the biggest reasons civil rights groups and scholars objected to the measure. They said the new language was vague and perhaps would allow the NSA to ensnare the metadata of broad swaths of innocent people in violation of their constitutional rights.
“In particular, while the previous bill would have required any request for records to be tied to a clearly defined set of ‘specific selection terms,’ the bill that just passed leaves the definition of ‘specific selection terms’ open. This could allow for an overly broad and creative interpretation, which is something we’ve certainly seen from the executive branch and the FISA Court before,” said Elizabeth Goitein, a co-director of the Brennan Center’s Liberty and National Security Program.