Yesterday Sen. Ron Wyden (D-Ore.), a longtime critic of the surveillance state and the "secret law" undergirding it, gave a sobering speech at the Center for American Progress. "If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices," he said, "we will all live to regret it." Wyden warned that "the combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action" threatens to give us "an always expanding, omnipresent surveillance state that—hour by hour—chips needlessly away at the liberties and freedoms our Founders established for us, without the benefit of actually making us any safer." Here are six points Wyden made that you should keep in mind during the debate over the National Security Agency's mass collection of data on law-abiding Americans:
1. It's already personal.
If you know who someone called, when they called, where they called from, and how long they talked, you lay bare the personal lives of law-abiding Americans to the scrutiny of government bureaucrats and outside contractors. This is particularly true if you're vacuuming up cell phone location data, essentially turning every American's cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans' location information in bulk….Without additional protections in the law, every single one of us in this room may be and can be tracked and monitored anywhere we are at anytime.
2. The Obama administration's interpretation of Section 215, the PATRIOT Act provision authorizing collection of "business records," has implications that go far beyond telephone metadata.
There is nothing in the PATRIOT Act that limits this sweeping bulk collection to phone records. The government can use the PATRIOT Act's business records authority to collect, collate and retain all sorts of sensitive information, including medical records, financial records, or credit card purchases.They could use this authority to develop a database of gun owners or readers of books and magazines deemed subversive. This means that the government's authority to collect information on law-abiding American citizens is essentially limitless. If it is a record held by a business, membership organization, doctor, or school, or any other third party, it could be subject to bulk collection under the PATRIOT Act. Authorities this broad give the national security bureaucracy the power to scrutinize the personal lives of every law-abiding American.
3. Wait, there's more.
Wyden spoke of his frustration at being unable to clearly describe the Obama administration's PATRIOT Act abuses because the information was classified. As a result of former NSA contractor Edward Snowden's recent leaks, he said, "Several provisions of secret law were no longer secret, and the American people were finally able to see some of the things I've been raising the alarm about for years." Some of the things.
4. The government routinely lies about the nature of the surveillance it conducts.
"Not only were the existence of and the legal justification for these programs kept completely secret from the American people," Wyden said, but "senior officials from across the government were making statements to the public about domestic surveillance that were clearly misleading and at times simply false." He cited several examples, ranging from the government's claim that Section 215 orders are just like grand jury subpoenas, which never authorize demands for information as broad as the NSA's phone record dragnet, to Director of National Intelligence James Clapper false denial, in response to a question from Wyden, that the NSA collects "any type of data at all on millions or hundreds of millions of Americans."
5. We may be trading our privacy for nothing.
As a member of the Senate Intelligence Committee since 2001, Wyden said, "I have not seen any indication that the bulk phone records program yielded any unique intelligence that was not also available to the government through less intrusive means."
6. When surveillance programs are secret and the government lies about them, it is hard to have a debate about their value and their compatibility with civil liberties.
The secret rulings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act, as well as section 702 of the FISA statute, in some surprising ways, and these rulings are kept entirely secret from the public. Americans recognize that intelligence agencies will sometimes need to conduct secret operations, but they don't think those agencies should be relying on secret law…It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public. They should be public all the time,open to review by adversarial courts, and subject to change by an accountable legislature guided by an informed public. If Americans are not able to learn how their government is interpreting and executing the law, then we have effectively eliminated the most important bulwark of our democracy….Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate.
President Obama claims to welcome the debate about NSA surveillance while treating the man who made it possible as a criminal and doing everything in his power to prevent ordinary Americans from learning enough to decide for themselves whether they want to exchange their privacy for his promise of safety. It is therefore hilarious that the White House, in yesterday's statement urging members of Congress to vote against an amendment that would bar the NSA from spending money on the indiscriminate collection of Americans' phone records, complained that the measure was "not the product of an informed, open, or deliberative process."