The U.S. Senate passed the USA Freedom Act on Tuesday, placing needed new limits on the National Security Agency’s domestic-spying programs. Even so, valid concerns persist about whether the bill adequately protects basic liberties.
Described by The Washington Post as “a significant remake of U.S. surveillance powers,” the legislation was approved last month by the House.
President Barack Obama signed the measure into law Tuesday night.
The president and his spokesman had repeatedly warned that by allowing controversial counterterrorism provisions of the Patriot Act to lapse on Monday, Congress would dangerously weaken the NSA’s ability to uncover terror-attack plots before it’s too late.
And there’s no disputing that timely, effective intelligence against the menace of Islamic radicals must be a national-security priority.
Yet the NSA’s bulk collection of Americans’ private phone and computer records imposed perils of its own to our constitutional protections against unreasonable search and seizure.
The new law mandates shifting NSA electronic snooping on Americans over a six-month transition period to, as the Post put it, “a system in which the data would remain in private hands but could be searched on a case-by-case basis under a court order.”
On paper, that sounds like a reassuring restoration of fundamental rights. In practice, though, the devil could be in the details of that “case-by-case basis.”
As 1st District Rep. Mark Sanford and Kentucky Sen. Rand Paul wrote on our May 20 Commentary page, Section 215 of the Patriot Act allowed for “secret court orders to collect ‘tangible things’ that could be relevant to a government investigation — a far lower threshold and more expansive reach than a warrant based on probable cause. The list of possible ‘tangible things’ the government can obtain without a warrant is seemingly limitless and can include things like driver license records and Internet browsing history.”
Will judicial interpretation of the new law fairly revive that “probable cause” virtue of the Fourth Amendment?
The answer is unclear. This much, though, should remain obvious:
If Americans surrender constitutional freedoms in the name of security, we will suffer a profound loss — and our enemies will gain a lasting victory.
So federal lawmakers, and the rest of us, should keep a close eye on how the new law is implemented.
And if the USA Freedom Act follows the Patriot Act’s overreaching example, Congress should try again.