The USA FREEDOM Act and the perils of linguistic excess

Rep. Jim Sensenbrenner (R-Wis.) and Sen. Patrick Leahy (D-Vt.) recently introduced the USA FREEDOM Act, which is both a complement and correction to the infamous USA PATRIOT Act of 2001.

Essentially the measure attempts to correct errors made by the PATRIOT Act and other laws, such as the Foreign Intelligence Surveillance Act (FISA), while providing a blueprint into how spying and transparency should function after Edward Snowden’s extensive data purge. Though others have pointed out potential flaws, at this point I believe the main problem with the measure is the name: Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act; and especially the acronym it spells: USA FREEDOM. It’s almost as if the two lawmakers, who were architects of the 2001 law, learnt nothing from their previous experience in linguistic excess.

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On one hand, it’s not at all surprising the bill is being put forward with such a title. My recent analysis in the Michigan Law Review of public law titles from the 93rd-112th Congress demonstrates that the use of the word "freedom" is on the rise: from the 93rd-101st Congress, no public law contained the word, while from the 102nd-112th Congress it was used in 18 titles. Additionally, the use of “America” has also been increasing. Analyzing the same range, “America” and its derivatives appeared in 18 public laws from the 93rd-101st Congress, and in 73 titles from the 102nd-112th. That’s over a 300 percent increase over the past ten Congresses. Thus, employing patriotic cues in short titles has certainly flourished in recent decades.

Additionally, Sensenbrenner has been one of the more successful lawmakers in terms of getting evocatively titled legislation enacted (e.g., USA PATRIOT Act, REAL ID Act, NO FEAR Act, SAFE DOSES Act, Justice for All Act, etc.). Thus to see a spin-off of the PATRIOT Act name would seem commonplace coming from one of the architects of the historic law. Further, emotive and evocatively labeled names may indeed have some tangible power: such titles can probably (at least initially) garner increased favorability ratings from those who encounter the legislation. My recently published piece in the British Journal of American Legal Studies (Manipulating Public Law Favorability: Is It Really This Easy?), demonstrates that evocatively titled legislation received consistently higher ratings than technical/descriptive titles, even though the exact same pieces of legislation were being described throughout the survey.

Leahy and Sensenbrenner know what they’re doing: naming a bill the USA FREEDOM Act makes it difficult for other legislators to oppose the measure; and further, if enacted, an evocative title probably makes it more difficult for the legislation to be amended or repealed (i.e., the USA PATRIOT Act and the No Child Left Behind Act, though highly controversial since their enactments, are still in force).

Conversely, I'm surprised a spin-off of the USA PATRIOT Act name would occur in this political climate, especially given the partisan congressional and cultural ramifications that the original title carries. Leahy and Sensenbrenner essentially admit in their  recent writingspress releases, and statements on their new bill that the USA PATRIOT Act did not necessarily live up to expectations; in particular, Section 215 allowed for the "dragnet" collection of citizen data that the NSA is currently engaged in. They attempt to blame this on the judiciary (i.e. "somewhere along the way, the balance between security and privacy was lost"), noting that the law was misinterpreted. At best, this statement bends the truth – while there are certainly times when legislation is purposefully left ambiguous in order to pass, this was not one of them.

The lawmakers knew the PATRIOT Act was highly controversial and contained many sensitive provisions, yet pushed ahead with it anyway. They even had the audacity to use "USA PATRIOT" in the legislation's title. If that law obviously had problems in terms of its content, then why should the American public trust something with a correspondingly-evocative title: the USA FREEDOM Act? While the latter bill does seem to have some laudable goals (e.g., ending the bulk collection of communication records, reforming FISA, increasing private company transparency), discussing these vastly important matters without such an excessively emotive title hanging over legislators’ heads would be beneficial, both for Congress and the citizenry.  

To put this in comparative perspective, legislators from the Westminster Parliament have told me they’re actually afraid of providing bills with tendentious or overly emotive names because they don’t want to have to answer to constituents when the lofty aspirations are never realized. Good for them; I, for one, applaud their self-restraint. Congressional lawmakers seem to have no hesitation spouting such bombast and then blaming others for the legislation’s inherent flaws. After the recent government shutdown and the previous debt ceiling charades, the American public doesn't need any more reminding of Congress’ habit for linguistic excess. The USA FREEDOM Act only exacerbates this problem. 

Jones is a postdoctoral research fellow for the Institute for Jurisprudence at the Academia Sinica, in Taiwan. He holds a PhD in Law from the University of Stirling and has published numerous articles on lawmaking and legislative drafting.