Is the Freedom Act More Effective Than the Patriot Act?

U.S. President Barack Obama addresses a news conference at the White House in Washington, August 9, 2013, after he sought to boost Americans' confidence in sweeping government spying programs, saying he would work with the U.S. Congress to reform key parts of the anti-terror Patriot Act. Jonathan Ernst/Reuters

As members of the Privacy and Civil Liberties Oversight Board (PCLOB), we have witnessed firsthand how oversight, coupled with transparency, can drive efforts to improve flawed surveillance programs.

Section 215 of the Patriot Act, under which the National Security Agency (NSA) collected and searched the telephone metadata of millions of innocent Americans, serves as a prime example.

The program operated for years with repeated approvals by the Foreign Intelligence Surveillance Court and continuing oversight by the congressional intelligence committees and executive branch officials.

During this time, the NSA did not publicly acknowledge its bulk metadata collection, much less engage in open discussion about the legality and propriety of such collection.

After details about the Section 215 program's existence were made public in 2013, the President and a number of Senators asked PCLOB to investigate and report on it. The Board's report, issued in January 2014, provided a detailed description of the Section 215 program, including how the NSA collected, queried, and stored telephone metadata.

We found that collecting vast quantities of everyday calling records, even without the content of the calls, had the potential to chill Americans' exercise of their freedom of speech, religion and association. Our report further determined that the program was illegal as well as ineffective in identifying terrorist plots.

Specifically, the report concluded that "we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation." Based on these findings, we recommended that the Section 215 program be discontinued as a policy matter.

PCLOB's report proved invaluable in the national discussion about the scope and form of government surveillance that ensued, with citizens, politicians and advocacy groups pushing for different outcomes. Although the discussion was frequently adversarial, with civil liberties advocates sparring with national security proponents, it resulted in the even-handed USA FREEDOM Act being enacted by Congress in June.

The USA FREEDOM Act prohibits the bulk collection of Americans' calling records by the NSA, replacing it with a program that increases the volume of records subject to query by the NSA while also requiring the agency to conduct searches in a more targeted manner.

This new system is noteworthy for many reasons, including the positive reception it has received from a wide variety of federal entities and officials. As authors of the Section 215 report, we are satisfied that the new program addresses many of the concerns we raised and applaud Congress for transforming our recommendations into law.

Likewise, the Intelligence Community has supported the USA FREEDOM Act from its inception, and seems satisfied with the changes it brings. With the caveat that the new program has just gone into effect, FBI Director James B. Comey recently testified that "in theory, it should work as well or better than what we used to have" (emphasis added).

There is thus reason to believe that the telephone metadata program created by the USA FREEDOM Act, in addition to being more transparent, is an improvement upon its predecessor.

The history of the Section 215 program is a testament to the importance of independent and transparent oversight in ensuring that surveillance programs operate within the law, account for privacy and civil liberties and serve as effective tools in combating terrorism.

PCLOB's independent investigation called into question the legality and effectiveness of the program, and added important factual and analytical substance to the conversation.

In this case, subjecting the Section 215 program to oversight did not undermine the NSA's mission or reflect a judgment about the relative value of privacy and security. Rather, the PCLOB's independent investigation ensured that national security programs best serve the American people by protecting both their physical safety and constitutional rights.

Public discourse about surveillance and national security are critical, and we support increased transparency and democratic engagement on these topics. We also believe reforms, such as those encouraging vigorous independent oversight of counterterrorism activities, can address a variety of concerns without requiring tradeoffs.

By looking for and embracing such common ground, ideological adversaries can not only help implement objective improvements to existing programs, but also begin a tradition of finding solutions that require the sacrifice of neither liberty nor security.

David Medine is the Chairman and Patricia Wald is a Member of the Privacy and Civil Liberties Oversight Board. The views expressed here are their own and do not represent the views of the Board or any other Board Members.