The USA Freedom Act of 2015, enacted June 2, sharply curtails the ability of the National Security Agency and FBI to obtain, without judicial approval, transactional telephone records from carriers and to search the metadata contained in those records without judicial approval as well. Privacy advocates in both parties fought hard for the act (as well as for more restrictions, which did not pass, on the government's ability to perform such surveillance).

The revelations of Edward Snowden, a former CIA analyst and NSA contract analyst, regarding the surveillance are well known and need no general summary. What is interesting, from a Fourth Amendment point of view, is whether the act renders moot the famous two-part test for determining whether an area enjoys privacy protection under the Fourth Amendment, announced in Justice John Marshall Harlan II's concurring opinion in Katz v. United States, 389 U.S. 347 (1967), under which a court is first to determine whether the subject evinced a subjective expectation of privacy, and second to determine whether society finds that expectation to be reasonable (hence, the famous “reasonable expectation of privacy”).

The act may not have killed the Katz test, but it certainly does raise questions as to how to use it in an age when digital communications and information change so quickly and become so intertwined in our lives that the law can hardly keep up with the technology.

USA Freedom Act

Critics of the USA Patriot Act, fueled by Snowden's revelations, were particularly critical of the warrantless bulk collection of telephone call records by the NSA, the searches of that data and how the Foreign Intelligence Surveillance Act's court conducted substantially all of its business with the government in secret. The Freedom Act made significant changes in those and other areas, but we will focus mostly on the first, with some attention to the second. Under the act, carriers now maintain their records without providing copies to the NSA, and searches of those records now can be conducted only after the government makes a showing of “reasonable grounds” to do so under amended 50 U.S.C. Section 1861(b)(2).