And the latter is even scarier than the former, says this senator. (The Act was signed into law by Obama’s “robo-pen” last midnight – Harry Reid pushed it through).
“We’re getting to a gap between what the public thinks the law says and what
the American government secretly thinks the law says,” Wyden told Danger Room in
an interview in his Senate office. “When you’ve got that kind of a gap, you’re
going to have a problem on your hands.”
What exactly does Wyden mean by that? As a member of the intelligence
committee, he laments that he can’t precisely explain without disclosing
classified information. But one component of the Patriot Act in particular gives
him immense pause: the so-called “business-records
provision,” which empowers the FBI to get businesses, medical offices, banks
and other organizations to turn over any “tangible things” it deems relevant to
a security investigation.
“It is fair to say that the business-records provision is a part of the
Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a
fair amount about how it’s interpreted, and I am going to keep pushing, as I
have, to get more information about how the Patriot Act is being interpreted
declassified. I think the public has a right to public debate about it.”
That’s why Wyden and his colleague Sen. Mark Udall offered an amendment
on Tuesday to the Patriot Act reauthorization.
The amendment, first reported by Marcy Wheeler, blasts the administration for
“secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney
General to “publicly disclose the United States Government’s official
interpretation of the USA Patriot Act.” And, intriguingly, it refers to
“intelligence-collection authorities” embedded in the Patriot Act that the
administration briefed the Senate about in February.
Wyden says he “can’t answer” any specific questions about how the government
thinks it can use the Patriot Act. That would risk revealing classified
information — something Wyden considers an abuse of government secrecy. He
believes the techniques themselves should stay secret, but the rationale for
using their legal use under Patriot ought to be disclosed.
“I draw a sharp line between the secret interpretation of the law, which I
believe is a growing problem, and protecting operations and methods in the
intelligence area, which have to be protected,” he says.
Surveillance under the business-records provisions has recently spiked. The
Justice Department’s official disclosure on its use of the Patriot Act,
delivered to Congress in April, reported that the government asked the Foreign
Intelligence Surveillance Court for approval to collect business records 96 times in 2010
— up from just 21 requests the year before. The court didn’t reject a single request. But it
“modified” those requests 43 times, indicating to some Patriot-watchers that a
broadening of the provision is underway.
“The FISA Court is a pretty permissive body, so that suggests something novel
or particularly aggressive, not just in volume, but in the nature of the
request,” says Michelle Richardson, the ACLU’s resident Patriot Act lobbyist.
“No one has tipped their hand on this in the slightest. But we’ve come to the
conclusion that this is some kind of bulk collection. It wouldn’t be surprising
to me if it’s some kind of internet or communication-records dragnet.” (Full
disclosure: My fiancée works for the ACLU.)
The FBI deferred comment on any secret interpretation of the Patriot Act to
the Justice Department. The Justice Department said it wouldn’t have any comment
beyond a bit of March congressional testimony from its top national security
official, Todd Hinnen, who presented the type of material collected as far more
individualized and specific: “driver’s
license records, hotel records, car-rental records, apartment-leasing
records, credit card records, and the like.”
But that’s not what Udall sees. He warned in a Tuesday statement about the
government’s “unfettered” access to bulk citizen data, like “a cellphone
company’s phone records.” In a Senate floor speech on Tuesday, Udall urged
Congress to restrict the Patriot Act’s business-records seizures to “terrorism
investigations” — something the ostensible counterterrorism measure has
never required in its nearly 10-year existence.
Indeed, Hinnen allowed himself an out in his March testimony, saying that the
business-record provision “also” enabled “important and highly sensitive
intelligence-collection operations” to take place. Wheeler speculates those
operations include “using geolocation data from cellphones to collect
information on the whereabouts of Americans” — something our sister blog Threat
Level has reported on