The US Winds Back Mass Surveillance Laws

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People living in the United States are said to be some of the most watched on the planet, with the National Security Agency (NSA) ramping up mass surveillance following the events of September 11, 2001.

The nation’s willingness to monitor civilians in a bid to prevent further terrorist attacks has had a trickle-down effect worldwide, with countries including Australia adopting similar surveillance measures since 2001 – most recently the unprecedented incursion into privacy brought about by the new metadata retention laws.

But key provisions of the Patriot Act recently expired, and the US Senate passed the USA Freedom Act soon after.

This will finally put an end to the NSA and FBI’s power to collect and examine civilian phone records, emails and internet in bulk.

So what does this mean for the future of America’s – and the rest of the world’s – data surveillance laws?

Mass Surveillance in the United States

The extent of spying by US government agencies was famously unveiled in 2013 by whistleblower and former NSA worker Edward Snowden.

Snowden revealed that the agency actively intercepted telephone and internet communications of over a billion people around the world, with 17,835 phone lines being listed on an ‘alert list,’ which meant that they were subject to daily monitoring.

It was also revealed that the government was able to track the location of civilian cellphones and could access a wide range of communications on social media and email sites.

It had also been storing metadata records of phone calls and internet communications which could be disclosed to government agencies including the Drug Enforcement Agency (DEA) and Internal Revenue Service (IRS) to assist with criminal investigations.

The surveillance was justified on the basis of anti-terror and political measures, but Snowden maintains that 90% of those subject to surveillance are ordinary people with no suspected terrorism or political links at all.

A Permanent End to Mass Surveillance?

The Senate’s decision last Tuesday to end the collection of phone and other data records has been hailed as ‘the country’s most significant surveillance reform since 1978.’

The passage of the Freedom Act means that, following the expiration of a 6-month transition period, government agencies such as the NSA and FBI will not be able to randomly access civilian phone, email or internet records.

It’s a positive step forward – but it certainly doesn’t spell the end of mass surveillance. Rather, the Freedom Act puts the onus on telecommunications companies to collect and retain this data.

Agencies can then apply to these companies to obtain the data, although applications must specify a particular individual or company, and the reasons for the request. The new US laws are in some ways a watered-down version of our own meta data laws – although applications Australia do not need to specify reasons.

Where To From Here?

While civil libertarians may be celebrating the passage of the Freedom Act, there are indications that the reforms may be short-lived.

There have already been reports that the US government is planning to reintroduce surveillance laws to once again enable the mass collection of civilian data and phone records by the NSA.

And experts suggest that any moves to reintroduce the laws may slip under the radar, as the government had applied to the secret Foreign Intelligence Surveillance Court for the reauthorisation of the program. If successful, it would fill the six-month gap in which government agencies are forced to suspend surveillance and data collection actions.

This is a questionable move considering an independent review undertaken last year found that the collection of civilian communication records had no real effect on preventing terrorism.

The possibility of the government reintroducing these laws so soon after the reprieve granted by the Freedom Act would be a blow to civil libertarians and supporters of Snowden’s campaign to end surveillance.

What Does This Mean For the Rest of the World?

Civil liberty groups around the world have been watching the situation unfolding in the US with anticipation with the hopes that it could spark a global reform away from mass surveillance and data collection.

But those hoping for law reform may be sorely disappointed. Rather, Australia’s recent legislative changes indicate that ‘Australia is moving in the opposite direction,’ as one journalist puts it.

And it doesn’t seem like other countries will fare much better. The UK already has extensive surveillance laws in place, implemented by the Government Communications Headquarters (GCHQ), which is privy to an ‘intelligence sharing arrangement’ with the US, UK, Australia, New Zealand and Canada.

This gives it the power to gather data on civilians and share it with their governments – which gives the US government another avenue to obtain confidential data regardless of the recent changes to the law.

It therefore appears that governments around the world have a long way to go before we can go about our lives without fear of our personal data being collected, used and perhaps misused.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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