A year before most of us knew that the National Security Agency was routinely collecting our phone records, Ron Wyden warned that the Obama administration would regret keeping us in the dark. "When the American people find out how their government has secretly interpreted the PATRIOT Act," the Oregon Democrat said on the Senate floor in May 2011, "they will be stunned and they will be angry."
As a member of the Senate Intelligence Committee, Wyden knew about the NSA's phone record dragnet, but most of his colleagues did not. The outrage he predicted therefore was not limited to the general public; legislators were also stunned and angry, as reflected in the privacy protection bill that two House committees unanimously approved last week. By exceeding the powers that Congress thought it had granted, the Obama administration seems to have assured passage of the most significant surveillance reforms since the PATRIOT Act was approved in 2001.
The secret interpretation to which Wyden alluded involved Section 215 of the PATRIOT Act, which authorizes court orders demanding records that are "relevant" to a terrorism investigation. The Obama administration, with the blessing of the secret court created by the Foreign Intelligence Surveillance Act (FISA), read "relevant" broadly enough to encompass any collection of data that might contain information about terrorists.
As Rep. James Sensenbrenner (R-Wis.), the PATRIOT Act's chief author, explained last week, "The government has misapplied the law….In a feat of legal and verbal gymnastics, the administration convinced the FISA Court that because some records in the universe of every phone call Americans make or receive are relevant to counterterrorism, the entire universe of those calls must be relevant."
Sensenbrenner's USA FREEDOM Act, which the House is expected to approve this month, rejects that reading of the law. The bill would prohibit the mass collection of telephone metadata—information about who talked to whom, when, and for how long. Instead the government would have to seek the records of specific targets from phone companies, using court orders based on "reasonable suspicion" that the targets are involved in terrorism.
The same restrictions would apply to other kinds of data held by third parties, including information about purchases, reading habits, research interests, and medical, legal, and financial matters. According to the Supreme Court, the Fourth Amendment does not apply to such records, which receive only as much protection as Congress decides to give them.
Prior to the House Judiciary Committee's vote on the USA FREEDOM Act, Rep. Zoe Lofgren (D-Calif.) noted how revealing such information can be, arguing that "Congress is going to have to come to grips with…what it means for personal privacy in the digital age." She proposed an amendment that would have raised the standard for Section 215 orders from "reasonable suspicion" to "probable cause," the requirement for searches of people and their property.
The committee overwhelmingly rejected Lofgren's amendment, anxious not to upset the compromises that had put the bill on a fast track. But she is right that we need to reconsider the legal treatment of remotely stored information, which is today's equivalent of the "papers" and "effects" that the Framers sought to protect from unreasonable searches and seizures.
The USA FREEDOM Act is a modest but significant step in that direction. In the year since news reports based on leaks from former NSA contractor Edward Snowden revealed the existence of the phone record database, President Obama has gone from portraying it as a minor and necessary encroachment on privacy to agreeing that it is neither. The Washington Post reports that the White House, which now supports eliminating the database, "insisted" that the legislation include prior judicial approval of record requests.
Whether or not Obama's conversion is sincere, it reflects a new political reality. The bipartisan panic that gave us the PATRIOT Act has been replaced by bipartisan qualms about giving the government the keys to our electronic filing cabinets.