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As you’ve probably heard, three provisions of the USA Patriot Act expired over the weekend, including the controversial bulk-collection of telephone metadata that the courts found wanting last month. In its place, Congress seems likely to pass some version of the USA Freedom Act,* which — among other things — stops the NSA from collecting bulk data but requires telephone carriers to store it on their behalf. In today’s The Wall Street Journal, the editors bring up some legitimate objections to the new legislation, concluding as follows:
So perhaps Senate passage of the House bill is the only realistic path to prevent even greater harm to U.S. security. But please spare us the civil-libertarian triumphalism. The real story this week is that Congress is harming and maybe ending an important defense against terrorism, while pretending not to.
Triumphalism is neither healthy nor laudatory and the new legislation is hardly beyond reproach, either from a philosophical or a practical perspective. The new process adds layers that will make accountability more difficult when failures occur, and seems to present a logistical nightmare from a data-management perspective. It is at least conceivable that important intelligence might slip through under the new system that would previously have been detected.
On the other hand, IS and al-Qaeda have little reason to do whatever the jihadist equivalent is of popping open a bottle of champagne. As I understand it, our intelligence services have essentially no legal restrictions on their ability to mine foreign sources of data — meta or otherwise — and bulk collection is only a small section of what they do. Moreover, active investigations are grandfathered in, and these programs appear to have played a relatively minor role in disrupting plots post 9/11.
What we’re seeing here is a slight rebalancing of Americans’ conflicting desires for security and liberty. As such, it’s most likely less harmful than its critics maintain — and is less of a victory for privacy than its proponents would have you believe —but it’s likely closer to what Americans desire. The wisdom, foolishness, or innocuousness of our decision will only be borne out in time, but it will be on our shoulders, as well it should be.
* I herby propose an amendment to the US Constitution to the effect that co-sponsoring legislation with such transparently self-congratulatory, who-could-be-against-that titles be classified as a form of treason.Published in