Jay Kesan | Publications

The National Security Agency’s surveillance activities are once again the subject of Congressional scrutiny.  In the past few days, the Senate voted to reject a bill that would have ended metadata collection under Section 215 of the Patriot Act.  Immediately thereafter, the Senate also voted to reject a 60 day extension of the Patriot Act, which then expired on June 1st.  The expiration of the Patriot Act ends the NSA’s ability to collect our phone data in bulk.  But it is very likely that we will have a new law, the USA Freedom Act, which has already passed the House with a very significant majority.  Under the new USA Freedom Act, the NSA would be authorized to search phone records that are held by phone companies based on individual court orders, instead of continuing their prior phone data collection program.  In addition, the USA Freedom Act does extend some provisions of the Patriot Act which allows collection of credit card, banking, travel and other business-related records. 

Controversy has surrounded the Patriot Act since it was signed into law.  It has often been cited as the law that gives the NSA the ability to collect massive amounts of information that citizens transmit. Defenders of the Patriot Act have said that the law is important to national security, and that it gives the NSA the tools needed to thwart potential terrorist threats. Critics call it an unlawful invasion of privacy on the part of the government, and some say it is a clear violation of the Fourth Amendment.Exactly what kind of data was being collected was not clear until Edward Snowden released a massive number of documents detailing the NSA’s surveillance programs.  Snowden’s report shed light on the NSA’s telephone metadata collection, which the NSA and its supporters said was justified under Section 215 of the Patriot Act.

In 2013, the ACLU brought suit against the NSA in the Southern District of New York, which found Section 215 gave the NSA the lawful ability to collect metadata.A few weeks ago, the Second Circuit, a federal appellate court in New York, overturned the district court’s decision and found Section 215 of the Patriot Act to be unlawful.

Proponents of these surveillance programs claim that these programs are responsible for stopping over 50 attacks.  But there is no real evidence to suggest that any of the Patriot Act programs have done just that.  Much of the underlying information is classified and not publicly available.  Hence, it is virtually impossible to conduct a scientific, data-driven empirical analysis to determine whether information collected under certain provisions of the Patriot Act allowed law enforcement to thwart specific terrorist attacks.  The national security arena is particularly difficult to study as a legal scholar since we cannot engage in the kind of analysis of the underlying data, as we might be inclined to do in other areas of the law where the relevant data is publicly available.

We are now left with developing a national security legal regime that is informed by what values we choose to advance over other competing values.Should we advance individual privacy concerns over collective security concerns or vice versa or what is the right compromise between these two considerations?

Neither proponents of civil liberties nor law enforcement agencies are entirely pleased with the USA Freedom Act.  If neither side is seen as a victor, we may be moving towards a pragmatic compromise between privacy and security concerns that may not be a bad outcome, and should perhaps even be a source of comfort for us.However, there is good reason to remain vigilant to see if the correct, thoughtful accommodations have been achieved.

Author – Jay Kesan

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