After a lot of drama and over the strident opposition of Senate Majority Leader Mitch McConnell, Congress yesterday passed the USA Freedom Act, a replacement for the Patriot Act that allows the government to continue its surveillance operations, albeit with new restrictions in place. President Obama eagerly signed the bill into law mere hours later.
Ultimately, this is not the biggest of big deals, despite both sides in the fight trying to spin it as an epochal showdown. Pro-bill people want as much “civil liberties street cred” as possible for their stand, and the antis want the differences heightened too. How a bill like this works out in practice is, of course, hard to say. Resourceful federal lawyers and bureaucrats will probably find ways to work around its restrictions and the natural tendency of the state to accrue power will continue though one can hope that some of its procedural safeguards may actually work.
But regardless of one’s opinion on the merits of this bill (or on the somewhat delusional zealotry with which some of its advocates seemed armed) this is definitely a topic that a healthy republic needs to be debating. Information and its communication is more and more the stuff of state power. Without information mastery, it is very hard for a government to enforce its laws, to protect its people from terrorists or to deal with threats—both cyber and on the battlefield—from other states. Yet information is at the same time the very stuff of privacy and liberty. And these days it is also the very stuff of commerce and wealth.
Inevitably, the state is going to become more involved in the information and surveillance business as the world’s business continues to shift from “stuff processing” to information processing, and as the importance of information continues to rise in all fields. Governments have no choice but to increase their capacities simply to keep pace with what is happening around them. As businesses subject to government regulation (to say nothing of criminal enterprises) increase their capacities, governments have to stay even. And in the current international environment, states want and need to know what other states are doing, and must be able to frustrate their abilities to snoop and to steal.
Battles over state surveillance and state information capacity are thus unavoidable, and by their nature they will require tradeoffs and compromises. Also, perhaps inevitably, most of the compromises will be flawed—sometimes terribly so.
The USA Freedom Act itself, then, is not as important as either the backers or the opponents think. It’s but the first step in a long line of compromises about these contentious issues. At best, it should force us to think hard about how we manage the problems that prompted this debate in the first place. If, for example, we really do have teams of hostile foreign government employees planning and executing malicious hacks against corporations and individuals in the United States, what powers of data surveillance and control should the U.S. government legitimately have—especially when cyberattacks might target electric utilities or other private companies whose operation is necessary for the public good? Those who see this problem as a simple morality play of evil government spies versus virtuous libertarian freedom fighters miss the point as much as those who fail to understand that the power of the state in the domain of information represents a serious civil liberties challenge.
Wrestling with these challenges looks like being an important aspect of governance in the 21st century; fortunately, the United States has a much longer track record at dealing with these issues than most other societies—societies that lack both our robust legal framework and our 200 years’ worth of experience in running a sovereign government with limited, circumscribed powers.