As the Senate debates the USA Freedom Act of 2015, passed by the House of Representatives on DATE, it is well to consider how little our government actually controls the Internet, and how incapable we are to assert our will over the Internet. It is not merely that United States may soon be losing accountability over the Internet Corporation for Assigned Names and Numbers (ICANN).
Last year, the North Korean terrorist government hacked into the electronic files of Sony. Sony was not compensated, and North Korea was not punished. No doubt, the governments of North Korea and other countries have hacked into the electronic files of many other companies–and many individuals as well.
We Americans are seemingly resigned and indifferent to the capacity of foreign governments and even corporations to monitor our every keystroke and thought. Ask millennials whether Google, Facebook, or other companies know everything about them, and the answer invariably is that there is nothing to hide and that sharing information is good. Ask the same individual about federal monitoring of their electronic information and the answer is horror mixed with anger.
Thus we have the popular support for the USA Freedom Act of 2015, sponsored in the House by Representative Sensenbrenner (R-WI), which would limit the federal government’s capacity to collect “call detail records” and “tangible things” from telephone and other companies. Senator Rand Paul (R-KY) would like to limit most government collections of electronic information without a court order.
The USA Freedom Act of 2015 is intended to limit federal collection of metadata under the Foreign Intelligence Surveillance Act of 1978 (FISA). Federal intelligence agencies claim this information is helpful in countering terrorism. Civil libertarians see it as an unreasonable governmental search and collection of information. Both groups may have a point, but both groups are not fully grasping the consequences of current technology. The very language of both USA Freedom Act of 2015 and FISA are increasingly out of date.
Consider a “call detail record.” Defined in the Act, it is a 20th century concept of a phone call or a text with “originating” and “terminating” phone numbers, but does not include the content of the communication or its GPS information. A great many communications by us Americans are still made the old-fashioned way with such phone calls. But many more communications are not. Emails and even video chats between web addresses have no “call detail records.” Moreover, except for traditional telephone companies, a long-suffering and rapidly diminishing breed, no one keeps track of call detail records anyway.
Also consider a “tangible thing,” a defined term under FISA and further limited under the USA Freedom Act of 2015. Most high school English teachers would be shocked to learn that our government has such a limited vocabulary as to resort to defining “tangible things.” The USA Freedom Act of 2015 spends many paragraphs narrowing the definition of an inherently unlimited concept of “thing.” No matter how it is defined, the Internet is far more than can be specified as a “tangible thing.”
All of this is to say that the USA Freedom Act of 2015 is fighting a current information and Internet war with weapons from a bygone era.