ABC The Drum
As the rally-around-the-flag effect of the War on Terror began to fade, concerns over surveillance started to emerge in the US. And now the new Freedom Act swings the pendulum back towards civil liberties, writes
Overnight, the US Senate passed the USA Freedom Act in a 67–32 vote. While this piece of legislation renews some of the recently expired provisions of the Patriot Act, it also makes major strides in increasing oversight of government spying activities.
Arguably, in the debate on the balance between national security and civil liberties, the pendulum has swung towards the latter.
After the 9/11 terrorist attacks, Congress passed the USA Patriot Act, which sought to enhance national security by removing restrictions on law enforcement. At the time, there were hardly any critics of the legislation, which passed in the Senate 98–1 in late 2001.
However, as the rally-around-the-flag effect began to fade, concerns over surveillance started to emerge. In the United States, domestic surveillance requires a search warrant. As part of the War on Terror, George W. Bush issued an executive order that allowed the NSA to conduct international surveillance without a warrant. More troublingly, the order applied to all communications, such as phone calls, text messaging, and internet activity, that citizens in the US were conducting with foreign parties.
In 2005, the New York Times first broke the news of the program and published a story on its website, even though the White House argued that the story could "jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny". The public outcry wasn't long lasting and the Bush administration continued with business as usual. What's more, in 2007 Congress passed the warrantless wiretap program, and the practices continued under president Obama.
It wasn't until 2013 when the former NSA contractor Edward Snowden leaked documents that pointed to the scale of the surveillance program. The details were staggering — the NSA operated under a top secret budget and had been collecting more than a trillion pieces of metadata that included email and instant messaging contact lists, searching email content, and tracking and mapping the location of cell phones.
This time, the reactions weren't lacking. One only has to remember the outraged German chancellor, Angela Merkel, who compared the NSA to Stasi after the news broke that the US spied on a number of foreign states and their leaders.
Domestically, for the first time since 9/11, Americans seemed to be more worried about civil liberties abuses than terrorism. More importantly, the sentiment in the US Congress began to shift. In mid-2013, about 55 per cent of Democrats and 45 per cent of Republicans defied the White House and their own leadership to vote for an amendment to ban the NSA's bulk phone records collection program.
The most recent bill is the reflection of a very public debate in the past couple of years — balancing public safety with the right to privacy. The security hawks have been arguing that new threats demand preparedness. On the other hand, civil libertarians have pointed out that national security concerns cannot trample on the Constitution and rights of individuals. President Obama has been positioning himself somewhere in the middle by arguing that tighter restrictions are needed, which is arguably what the USA Freedom Act has delivered.
The most important parts of the new legislation are the ban on bulk collection of phone records data, and a more stringent oversight and greater transparency of the Foreign Intelligence Surveillance Court, which will now have to allow public advocates to participate in the proceedings, as well as publish detailed statistics about the extent of domestic surveillance programs.
While the bill is definitely a step in the right direction for those who believe that greater controls are necessary to safeguard privacy rights, it doesn't mean that the broad government surveillance programs have ceased to exist. Rather, at the moment, a "reasonable compromise" has been reached between respecting constitutional rights and having strong national security tools.
While the bill is now on its way to president Obama's desk for signing, the debate continues. One of the most fervent advocates of civil liberties in the Senate and a 2016 Republican presidential primaries candidate, Rand Paul and his allies in the House of Representatives, have already announced that they are planning to introduce a whole new range of amendments and measures to counteract surveillance programs that would be unaffected by the USA Freedom Act.
As security needs of the new millennium change, balancing them with the long legacy of rights will prove increasingly challenging.
This article was originally published at ABC The Drum