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Privacy Rights in the Digital Age

USA FREEDOM Act, Pub. L. No. 114–23

by Eric Merriam

The federal statute signed by President Barack Obama on June 2, 2015, the day after the expiration of some provisions of the USA PATRIOT Act. The USA FREEDOM Act's full title is the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015. The USA FREEDOM Act has three significant privacy-related provisions. First, it withdrew a specific legal authority used by the National Security Agency (NSA) to conduct bulk collection of telephone metadata records. Second, it required greater transparency of Foreign Intelligence Surveillance Court (FISC) decisions and authorized appointment of amicus curiae (“friends of the court”) to make legal arguments before the FISC to “advance the protection of individual privacy and civil liberties.” Third, the USA FREEDOM Act allowed individuals and companies greater freedom to report or disclose their participation or nonparticipation in bulk data collection by the government.

As its full name suggests, the USA FREEDOM Act's stated purpose was to better control surveillance of American citizens. The primary way in which the USA FREEDOM Act attempted to accomplish this was to impose a sunset on the statutory authority used by the federal government for the bulk collection of information of Americans' telephone calls. This form of surveillance, under which the government required telephone providers to turn over all telephone call metadata, such as the numbers of the caller and recipient, and time, location, and duration of the call, though not the content of the calls themselves, had been authorized controversially under the USA PATRIOT Act's Section 215. The existence of the bulk collection program was confirmed through leaks by former NSA contractor Edward Snowden in June 2013. The first draft of the USA FREEDOM Act was introduced shortly thereafter, in October 2013. The USA FREEDOM Act ultimately ended Section 215 authority for bulk data collection; under the terms of the USA FREEDOM Act, the authority expired six months after the bill became law. Ironically, because Section 215 of the PATRIOT Act had expired the day before the USA FREEDOM Act was signed into law, the USA FREEDOM Act technically served to revive temporarily the authority for bulk collection rather than end it. Some commentators have suggested that because Section 215 expired, it could not be revived by the USA FREEDOM Act. Nevertheless, soon after enactment of the USA FREEDOM Act, the NSA apparently resumed its bulk collection program.

The USA FREEDOM Act also required greater transparency of FISC operations. Specifically, the USA FREEDOM Act requires the FISC to disclose unclassified summaries of significant opinions publicly. These summaries are to include descriptions of the context of the opinion and any significant interpretations of law. The USA FREEDOM Act also authorized appointment of amicus curiae to represent “the public interest” during FISC proceedings as it relates to individual privacy and civil liberties, a development considered by some to be an important step toward greater privacy protection. Because FISC routinely made legal decisions with only counsel for the government participating, many critics of government surveillance suggested that the court was insufficiently informed of significant privacy concerns. It is unclear how effective amicus participation under the USA FREEDOM Act may be. First, FISC retains control over amici appointments and when and how it will consider their arguments. In addition, the amici may not be privy to all information in a particular case because the USA FREEDOM Act requires them to have access only to materials that FISC determines are relevant to their duties. Perhaps most important, the amicus procedure still does not allow the subjects of FISC orders to have legal representation before FISC. USA FREEDOM Act proponents counter that while it may not offer the same vigor that opposing parties traditionally provide under the U.S. adversarial legal system, the participation of amicus curiae results in a more informed court.

Finally, under the USA FREEDOM Act, individuals and companies who receive bulk collection orders from the government may publicly disclose more information, including the number of selectors requested by the government. Individuals and private companies that do not receive surveillance orders are explicitly permitted to confirm nonparticipation.

Critics have suggested that the USA FREEDOM Act is a failure as a privacy protection tool for several reasons. First, although it eliminated a specific statutory authority on which the government had relied for bulk data collection, it did not affirmatively outlaw the practice. Second, the USA FREEDOM Act requires telephone companies to store and maintain their metadata so that it can later be searched by the government on an individual basis. Finally, many critics argue that the USA FREEDOM Act is a token substitute for meaningful surveillance reform. Notably, the USA FREEDOM Act did not remove the statutory authority for other controversial surveillance activities, including PRISM, under which the government collects Internet-based communications.

Further Reading

1 

Etzioni, Amitai. How Patriotic Is the Patriot Act?: Freedom versus Security in the Age of Terrorism. New York: Routledge, 2004.

2 

Eyre, William. The Real ID Act Privacy and Government Surveillance. El Paso, TX: LFB Scholarly Pub., 2011.

3 

Kiefer, Francine. “With Passage of USA Freedom Act, Congress Tweaks Security-Privacy Balance.” Christian Science Monitor, June 2, 2015.

4 

Mass, Warren. “USA Freedom Act Fails.” New American, December 22, 2014.

5 

Moore, Adam D. Information Ethics: Privacy, Property, and Power. Seattle: University of Washington Press, 2005.

6 

Rackow, Sharon H. “How the USA Patriot Act Will Permit Governmental Infringement upon the Privacy of Americans in the Name of ‘Intelligence’ Investigations.” University of Pennsylvania Law Review 150, no. 4 (May 2002): 1651–1696.

7 

Rubel, Alan. “Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy.” Law and Philosophy 26, no. 2 (2007): 119–159. http://ssrn.com/abstract=881130.

8 

Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton, 2004.

See also: Foreign Intelligence Surveillance Court (FISC); Metadata; National Security Agency (NSA); PRISM; Snowden, Edward Joseph; USA PATRIOT Act

Citation Types

MLA 9th
Merriam, Eric. "USA FREEDOM Act, Pub. L. No. 114–23." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0220.
APA 7th
Merriam, E. (2016). USA FREEDOM Act, Pub. L. No. 114–23. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Merriam, Eric. "USA FREEDOM Act, Pub. L. No. 114–23." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.