Privacy SOS

Wyden: “The government’s authority is limitless.”

The very same week that the House of Representatives narrowly declined to forward the Amash-Conyers amendment, which would have stopped the NSA’s bulk domestic records collection program, longtime civil liberties defender and Senate Intelligence Committee member Ron Wyden sounded the alarm about what the program actually allows, suggesting that it is much broader and more invasive than has been publicly reported.

Press reports on the metadata program have focused on bulk cellphone and internet records collection, but in public appearances last week and this past Sunday, Wyden  hammered home a critical issue: nothing in Section 215 of the Patriot Act prevents the government from using the same authority to collect any record whatsoever held by a third party about our private lives, in bulk.

It's not just cellphone and internet metadata

Comments Wyden made on CSPAN’s ‘Newsmakers’ program this Sunday echo those he made last week in a speech to the Center for American Progress, during which he repeatedly mentioned location tracking within the context of the government’s bulk records collection. The key portion of that speech reads:

Despite the efforts of the intelligence community leadership to downplay the privacy impact of the Patriot Act collection, the bulk collection of phone records significantly impacts the privacy of million of law­abiding Americans. 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 law­abiding 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. 

Especially troubling is the fact that 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 law­abiding 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.

On Sunday, the AP’s Lara Jakes asked Wyden about his comments last March, when he and Senator Mark Udall wrote a letter warning that the public would be “stunned” and “outraged” to learn about how the government was secretly interpreting its surveillance authorities. 

Jakes asked Wyden if the phone and internet metadata program is the one that Wyden and Udall referred to in their March letter, or if there is yet more going on behind the wall of state secrecy that would ‘outrage’ and ‘stun’ the public.

Wyden said that he isn’t allowed to disclose classified information, ‘to tap the truth out in Morse code,’ but repeated what he said last week at American Progress: there’s nothing in the law to stop the NSA from sucking up whichever records it wants.

“I was in fact talking about the bulk collection of the phone records of millions and millions of law-abiding Americans,” he said of the March letter. “Now, with respect to other approaches, what I can [say], because you’re barred from talking about details, is under the Patriot Act, the government’s authority to collect is essentially limitless. It can get medical records, financial records, records about firearms. The government’s authority is limitless.”

Jakes: “In what other areas do you think Americans should be most worried about when it comes to surveillance collection?”

Wyden: “I continue to be very concerned about the fact that the government will not state clearly what the rules are with respect to tracking Americans on their cell phones. And I have asked this repeatedly at public hearings in the intelligence committee. The government’s official position is: first, they have the authority to do it, and second, they’ve said they are not doing it now — but they will not spell out what the rules are today with respect to the rights of Americans, law-abiding Americans, with respect to cell phone tracking…

"Having that computer in your pocket increases the potential that you could be tracked 24/7. And when the FBI director tells public forums, when we have asked and asked repeatedly, what are the rights of law-abiding Americans with respect to cell phone tracking, you can’t get an answer. Yes, I think there’s reason to be concerned.”

Wyden told CSPAN that the momentum from the Amash-Conyers amendment vote was only building, and that he and a bipartisan group of lawmakers would see to it that the widespread outrage over the NSA's suspicionless surveillance would translate into law reform.

“I am working with democrats and republicans to overhaul these programs dramatically,” Wyden told the journalists. 

"We are going to stay at it until this is fixed. The status quo is unacceptable."

Senator Wyden and his reform-minded colleagues are supported by the majority of people in the country, a new poll finds.

The new Pew poll shows that public opinion on spying has shifted considerably in the wake of the revelations leaked by Booz Allen-employed NSA contractor Edward Snowden to the Guardian’s Glenn Greenwald.

The Hill reports:

A majority of Americans — 56 percent — say that federal courts should impose tougher restrictions on the government's ability to collect phone and Internet data, according to a poll from the Pew Research Center.

The poll, which was released on Friday, shows a dramatic swing in public opinion in recent years in favor of stronger civil liberty protections. 

The poll found that 43 percent of Republicans and 42 percent of Democrats believe that anti-terror policies have gone too far in restricting civil liberties. Only 25 percent of Republicans and 33 percent of Democrats held the same view in 2010.

The study found a lack of trust in the official government position on the anti-terror surveillance programs. Only 22 percent said they believe the government uses the data only for anti-terror purposes, while 70 percent said they believe the information is being used for other purposes as well.

The Senate Judiciary Committee will hold hearings on NSA surveillance this Wednesday. Scheduled to appear before the committee is Jameel Jaffer, deputy legal director of the American Civil Liberties Union. The ACLU is currently suing the government over the metadata records collection on behalf of itself, a Verizon Business customer.

© 2021 ACLU of Massachusetts.