Prying Provokes Privacy Protection

Obama's PATRIOT games end in bipartisan support for surveillance reform.


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.

NEXT: Brickbat: Don't Smoke 'Em If You Got 'Em

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  1. As Rep. James Sensenbrenner (R-Wis.), the PATRIOT Act’s chief author, explained last week, “The government has misapplied the law…”

    That’s on you, dipshit. Create a law without clear and concise boundaries and those charged with applying it will take the path of least resistance right over it to get to their goal.

    1. I’m pretty sure clear and concise boundaries have little effect on Obama and the DOJ doing just whatever the fuck they want. After all, the Constitution is pretty clear and concise.

      1. the Constitution is pretty clear and concise.

        Well, except for all those penumbra and emanations judges congresstards presidents people keep tripping over.

      2. the Constitution is pretty clear and concise.

        Not so fast, there, WTF — “Congress”, “shall make”, and “no law” are open to all *kinds* of interpretation!

        1. “Congress”, “shall make”, and “no law” are open to all *kinds* of interpretation!

          Otherwise known as the unwritten “FYTW” clause.

        2. its awesome. Start working at home with Google. It’s a great work at home opportunity. Just work for few hours. I earn up to $500 a week. I can’t believe how easy it was once I tried it out. http://www.Pow6.com

      3. The Constitution isn’t a suicide pact !!!!!!1111

        1. It’s a eulogy

          1. What the statists giveth the statists taketh away. Blessed be the statists.

    2. I’m fairly certain that “a law without clear and concise boundaries and those charged with applying it” was considered more feature than bug, when the intelligence community wet-dream come true.. “Patriot chickenshit coward Act” was passed. Crocodile tears over it’s exposed abuse is the epitome of disingenuous. Pancreatic cancer would only begin to serve justice to the one who has wiped his ass with this nations bill of rights with that abomination….

    3. Can I get out of speeding tickets by telling the government, that “Sorry, I misapplied the speed limit law. It wasn’t entirely clear what frame of reference you were supposed to use when calculating velocity”?

      Why isn’t someone going to jail over this?

      1. because the people are fat dumb and happy. The typical numb ass on the street is not feeling the pain. It does not help that the schools indoctrinate our future brown shirts with BS like, “why worry is you have nothing to hide?”

  2. This Act may be cited as the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act” or the “USA FREEDOM Act”.

    Once again — How many taxpayer dollars are spent contriving “cute” names for legislation?

    1. Because spotty information pieced together from metadata just screams beyond a reasonable doubt…

      1. Procedures were followed. Why are you so concerned about dead terrorists? Are you a terrorist?! We’ll be looking into your metadata… see if you’re a terrorist.

        Hail Hydra!

        1. Jesus H Christ!.. you’re right!… How could I have been so blind?! Thanks for straightening me out there fellow citizen, I don’t know what came over me. That is why I leave the thinking to TOP MEN LLC?, they seem to know best for us all, from what I see on the news… I’ll be good now…

          /scurries away to a dark corner

          1. Even with the sarc font in clear view … this is vomit inducing.

      2. It screams, “Fuck you that’s why!”

        Or maybe it’s screaming “STOP RESISTING! STOP RESISTING!!!111!!!”

        1. I think it’s just baldly stating “What are you gonna do about it, bitchez?”

    2. “We kill people based on metadata.” You can see Hayden make that statement at the 18 minute mark of this video — though he immediately tries to qualify the statement by saying we don’t kill people based on this metadata.


    3. NSA General Counsel Stewart Baker has said, “metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.”

      SEE?! You’re free to say whatever you want in your messages!

  3. Jacob Sullum Almanian on NSA Surveillance Restrictions

    “There are no restrictions, and there will continue to be no restrictions, regardless of what ‘law’ or ‘administrative changes’ the administration and.or Congress implement. Period.

    Have a nice day.”

  4. Now that Obama has changed his mind, I’m sure all the progs will stay the course because “they have nothing to hide.”

    1. Oh come on, man, this is beyond stupid ideological labels and you should knoW better. Senator Wyden — mentioned in the very first paragraph of this article — is a strong progressive and has been a lonely voice in trying to change the PATRIOT Act for years, through both the Bush and Obama administrations. So are the people on Daily Kos that were screaming about this from Day 1.

  5. “The United States can always be relied upon to do the right thing ? having first exhausted all possible alternatives” – often (and falsely) attributed to Winston Churchill

    But here’s the thing, and I have been saying it over and over: the NSA will simply ignore any restrictions, while lying to Congress by claiming they are obeying. Once this power has been used, it will not be given up. I will not hold my breath waiting for the new storage center in Utah to be torn down, because it won’t be.
    The only way to stop this is to completely disband the NSA, and hold the people who ordered these activities accountable by putting them on trial for treason, and then publicly executing as many as possible; after which their corpses need to be interned in gibbets, and placed prominently along Washington Blvd, as a reminder to any future would-be tyrants.
    Further, the information that had been collected so far needs to be destroyed, after being inventoried to make sure that all of it has been destroyed, and not secretly copied and stored elsewhere.
    Fire is the only way to make sure the weeds do not re-grow.

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