Americans cherish their privacy — as much as they value their security.
Those two values are in some conflict as Congress considers the fate of the Patriot Act, the legislation passed to strengthen national security controls following the Sept. 11, 2001, terrorist attacks. Barring an extension, the Patriot Act is set to expire June 1. In reality, because of the Memorial Day recess, Congress has only until Friday to pass legislation that would reauthorize or amend it.
If its provisions are to continue, Congress will need to clarify where its limits lie, a federal court says. A three-judge panel of the 2nd U.S. Court of Appeals ruled earlier this month that the National Security Administration’s bulk collection of phone records exceeds what the law allows. The NSA has been vacuuming up and warehousing this phone data, which includes the number called, the date, time and duration of each call, but not the content or people’s names. The data can then by analyzed for matches to phone numbers of known terrorists as domestic connections to terrorism plots are sought.
But doubts have been raised about the program’s costs, its intrusion on Americans’ privacy, potential for misuse and its effectiveness as an anti-terrorism tool. Officials have acknowledged that the phone data has yet to uncover a terrorist plot, and some in the NSA had even considered abandoning the program before details of its existence were leaked.
The House has proposed changes, rather than reauthorization. On Wednesday it passed the Freedom Act on a bipartisan vote, 338-88, that would end the bulk collection of phone data, allowing such collection only on a case-by-case basis and with prior approval from the Foreign Intelligence Surveillance Court. (That data would remain with the phone companies who routinely keep it for 180 days.) The legislation also would provide for a panel of experts to advocate for privacy concerns before the surveillance court. And the act includes a provision proposed in legislation introduced last year by Rep. Rick Larsen, D-Wash., that would allow communication and technology companies to disclose the amount and type of information they are ordered to turn over to the government.
Even with overwhelmingly bipartisan support in the House, the Freedom Act may not even get a hearing in the Senate. Senate Majority Leader Mitch McConnell, R-Kentucky, wants to simply renew the Patriot Act. And Sen. Richard Burr, R-North Carolina, chairman of the Intelligence Committee, has said his committee will not take up the House legislation, saying its passage would be no different than letting the Patriot Act expire.
There are many who would be content to see that happen. And it may. The House seems as reluctant to reauthorize the Patriot Act as some in the Senate are of considering the Freedom Act.
The Freedom Act would set limits for the NSA advised by the courts, provide some needed transparency and represents a reasonable balance between privacy and security.
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