The 2015 USA FREEDOM Act may get Americans more interested in their privacy, and that’s great

on May 18 | in Congress, Intelligence Reform, NSA, surveillance

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Do you trust your cell phone company to protect your privacy, and do you think the government should force it to keep records of all calls to prevent terrorist plots? Those are some of the questions facing the Senate after the House passed the 2015 USA FREEDOM Act by an overwhelming majority. Senators will now debate the bill where a key sticking point is whether the legislation should require a “data retention mandate”—that is, a minimum period of time telecom companies must hold your metadata.

The public has been generally disinterested in NSA’s bulk collection of metadata, patient as comedian John Oliver demonstrated recently, despite Edward Snowden’s disclosures since 2013 and the subsequent media firestorm. But the Act may have the unintended consequence of encouraging regular Americans to take a greater interest in their own privacy.

Why? Because the current version of the USA FREEDOM Act will shift the responsibility of bulk collection to the telecommunications companies, who already store your phone and text data for business, legal, and quality control purposes anywhere from one to seven years. No longer will Uncle Sam be holding this data—private firms will do it instead.

The next question is whether the government should require these companies to hold data for a set period of time. Former Senate Intelligence Committee ranking member Saxby Chambliss and current ranking member Diane Feinstein have both spoken in favor of a mandate. Yet a coalition of electronic privacy groups signed a letter on 11 May urging Congress to strike the mandate. (Notably, the letter does not call to sunset data retention, meaning private firms can continue collecting, indefinitely holding, and making money from as much data on Americans as they desire.) The Department of Justice and the Director of National Intelligence have indicated current telecom data retention business practices are sufficient for intelligence purposes.

Without a retention mandate, the Act could help empower consumers to take greater interest in their privacy by allowing them to vote with their wallets — which always helps to concentrate the mind. Phone providers’ data retention practices are publicly available; should a consumer prefer to limit his or her exposure to potential intelligence or law enforcement investigations, he or she can consider the provider who retains metadata for the shortest period of time. This might start a ‘race to the bottom’ for firms trying to attract those who are privacy-inclined.

Just to be clear, omitting the mandate and in effect permitting cell phone companies to delete data within months may hinder America’s ability to thwart future terrorist plots. Consider that some terror operations take years to unfold—9/11 took some six years to plan and execute. Other attacks planned by al Qaeda in the Arabian Peninsula against U.S. targets appear to have taken at least several months, if not longer.

Companies want to retain metadata for business purposes—collecting, analyzing, and selling data is a big business, after all—so we shouldn’t expect a sudden change in their retention times. And even if placing metadata with private companies and omitting a mandate may hinder some future terrorist investigations, there’s still a question about whether the value of the metadata outweighs privacy concerns.

In the absence of any comparable metrics on the costs and benefits of the program, the American people must take a more active role in deciding what kind of security state they want and what they are willing to give up for that security. The USA FREEDOM Act helps us take a step—perhaps only a tentative step—in that direction.

Is killing the mandate a cure-all for Americans who are generally disinterested in protecting their own privacy? Probably not. However, it does allow telecom companies an additional avenue to distinguish themselves from their competitors without adding costly regulations that will inevitably be passed onto customers.

So if the bill becomes law this year without a data retention mandate, perhaps you ought to look out for a blitzkrieg of advertising by cellphone companies touting their data plans and their newfound commitment to your privacy.

Kevin Strouse ran for Congress in 2014 in Pennsylvania’s 8th District after serving as an analyst for the CIA and as an Army Ranger who deployed Iraq and Afghanistan. Kevin lives in Bucks County, Pennsylvania, with his wife Amy and two young children, Walter and Charlotte.

photo: The President on an ancient type of cellphone — one that connects to the wall. (Official White House photo)

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