Acting under the Patriot Act, the NSA has collected metadata about telephone calls made by and to Americans which could later be searched. The collected data did not include the contents of a telephone call, but rather details about the call, such as phone numbers and call length.
In May, the court held that the Patriot Act did not allow for this type of bulk telephone metadata collection and ruled the practice illegal.
As a result, Congress passed the Freedom Act, which President Obama then signed into law.
The Freedom Act amends the Patriot Act to some degree and permits the government to collect call detail records only if the call meets certain “additional requirements” including a “reasonable articulable suspicion that such specific selection term is associated with a foreign power . . . or an agent of a foreign power engaged in international terrorism or activities in preparation therefor.”
Essentially, the Freedom Act provides for a more narrowly tailored and targeted collection of call detail records.
The Freedom Act also requires the government to adopt procedures that “require the prompt destruction” of call detail records produced that it determines are not “foreign intelligence information.”
But now, many critics of the Freedom Act call the legislation a “bandaid fix”, with secret loopholes that allow the U.S. government to bypass the protections of the Fourth Amendment in order to conduct its massive surveillance of American citizens.
These critics compare the loopholes to the same ones that allowed the U.S. government to move its “torture” tactics overseas in order to sidestep legal prohibitions against such tactics on American soil. They argue that by moving its data collection, storage and surveillance activities outside of the United States, the government can bypass constitutional protections against warrantless searches of electronic data.
According to some analysts, the U.S. government just has to shift the data across the border in order to “[circumvent] constitutional and statutory safeguards seeking to protect the privacy of Americans.” And, this is supposedly authorized by Obama’s Executive Order 12333, which allows for the government’s collection of data on Americans as a result of surveillance conducted on foreign soil.
Critics point out that the NSA was unfazed when the court required the shutdown of the metadata collection program because the agency had already determined it could accomplish the same results “without being shackled by the legislative or judicial branches of the government.”