Rand Paul Runs on NSA Fight, As Privacy Advocates Wonder What He Actually Won

Audiences and experts disagree about what the Republican presidential candidate has been able to do.

Over the past weekend, as Kentucky Senator Rand Paul stumped through New Hampshire, the aura of the Patriot Act fight was still in full glow. Paul gave six public speeches (in addition to a closed-door event at Murphy's, a Manchester tavern owned by a state representative), all of them beginning with a rundown of his fight in Washington.

"Some in Washington say that you have to trade your liberty for security," Paul told an overflowing crowd at the opening of his Manchester office. "So we had a grand debate, 10 and a half hours on one day. We came back for a few hours. Now, some in the Washington machine didn't want to be there. They wanted to be on vacation. But we caused them to give a little bit of vacation up to have a very important debate."

The way Paul told it, his two-week battle over the Patriot Act exposed the government's fallacies and weakened its power to spy. "Even the government says they're not getting any useful information," he said, "yet they still say they want more, more, more. I think Malcolm Gladwell said it well. Good information is not about knowledge—it's about understanding."

Yet for all the good that came for Paul, his battle was a source of dread and annoyance for some civil-liberties campaigners. The USA Freedom Act, which passed without Paul's support, had already divided that community. Some of them saw it as the best possible bill they could get through Congress. Some—noting the lack of opposition from the advocates of the surveillance state—saw it as a placebo, and rooted on Paul to kill it. The others spent three frantic days wondering whether Paul's delays would allow Majority Leader Mitch McConnell to weaken USA Freedom further.

In an interview with Bloomberg, Paul said he never worried about that. He said that he would put pressure on Washington and make it untenable for a rote reauthorization of Patriot, and he did so.

"I didn’t really think about it, I guess," Paul said. "I didn’t really think they had the votes to pass any of his amendments, but I didn’t know for sure. I think one of the most interesting things that nobody has really written about or picked up on is, there were 57 votes for the USA Freedom Act, and when we were done, there were 67. Even though I voted against final passage, I jokingly told supporters, 'I got you 10 votes!' I spoke for so long, I made so many people mad at me, that they said, ‘We’ll vote for anything that lets us go home.’ So, the ‘let me go home’ crowd was worth 10 votes, and it ended up passing."

That version of events clashed with what some privacy advocates were watching. "There were 67 votes for USA Freedom because it became clear the alternative was sunset," said Julian Sanchez, a senior fellow at the libertarian Cato Institute who researches privacy issues. "The alternative was sunset because they didn't have the votes to push anything else through."

And that was a moot point. Paul's plan did not backfire. What it did do was leave the impression that USA Freedom was a kind of defeat for privacy, full of backdoors the National Security Agency could run through. To the frustration of Sanchez and others, Paul spent much of his time in the Senate debate arguing that the government could ignore new limitations on what data could be searched, limitations written into the law.

"Well, the ACLU has written that, number one, it would moot the case," Paul explained. "I still want there to be a suit all the way to the Supreme Court that discusses whether you have any expectation of privacy in your records."

Privacy advocates say that's still possible. "While it is unfortunate that the Department of Justice is arguing that the USA Freedom Act moots important court cases, we don't think this is close to the end of the game," said Amie Stepanovich, U.S. policy manager at the privacy group Access. "Key challenges to surveillance practices will continue to move forward, and we fully expect the U.S. Supreme Court to reverse long-standing precedent that the government has perversely over-interpreted to open up surveillance databases to gargantuan proportions."

Meanwhile, Paul is locked in a new argument with critics like Michael Hayden, the former director of the NSA. In retirement, Hayden has become an accessible, talkative critic of privacy campaigners. On June 2, as the Patriot debate ended, he published a column that patronizingly called Paul "always sincere, often compelling, and occasionally flat out wrong." To Paul, Hayden's argument was a clue to how the government would keep spying. 

"They maintain, and they’re pretty glib about this, that the Fourth Amendment doesn’t apply to your records at all," he said. "That’s how they interpret Maryland vs. Smith. Many of the justices have said they’re ready to reexamine this. This was the perfect case. Now, since we’ve changed the law, it’s a moot point, and we may not get back up there. So I was worried about that. I also liked that the USA Freedom Act got rid of bulk collection, but I worry that we swapped one form of bulk collection for another. When you select your items to search, you’re still allowed to throw a corporate name in there."

So, Paul and some privacy advocates agree to disagree. The key difference between them: Paul is running for president, with all of the attendant advantages of media coverage and access. The strange bumper crop of recent columns announcing Paul's decline or demise fail to consider the momentum he's gotten from re-engaging on privacy.

    Before it's here, it's on the Bloomberg Terminal. LEARN MORE