Last week, during the debate on renewal of three expiring provisions of the PATRIOT Act, Senators Ron Wyden and Mark Udall participated in a colloquy in which they discussed an interpretation of the PATRIOT Act by the Obama administration that they said was illegal, calling the administration's overreach a "secret law."
Wyden said that the executive branch had developed a legal theory unknown to the public that outlined what kind of information it could collect under at least one of the provisions the lawmakers were opposing. He said that the executive branch reading amounted to "secret law" that didn't jibe with a straightforward reading of the text of the legislation.
"I want to deliver a warning this afternoon," Wyden said. "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry."
Intelligence Committee Chair Diane Feinstein also participated in the colloquy, and suggested that the committee would have a hearing on the issue, a closed, classified secret hearing that would likely prevent the American public from knowing the extent to which the data collection efforts by this administration are out of legal bounds. The administration has, as of yet, declined to explain what Wyden and Udall were talking about.
In response, the ACLU has filed a Freedom of Information Act request "demanding that the Justice Department release information about the government's use and interpretation of Section 215" of the PATRIOT Act.
We anticipate litigating the request. Those of you who have followed the Patriot Act debate since 2001 will know that this isn't the first time we've sought information about the government's use of this provision. Back in 2002, we filed litigation under the Freedom of Information Act that eventually resulted in the release of a few hundred documents — including this, this, and this. But now the FBI is using Section 215 much more aggressively. It's using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.
Section 215 allows the F.B.I. to obtain things like "driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like" about individuals, and potentially much more, including potentially cell phone records and geolocation information gleaned from cell phone data. There's some reason for alarm.
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.
Wyden, Udall and Senators Jeff Merkley (D-OR) and Sheldon Whitehouse (D-RI), who have also been in discussions with Feinstein about oversight of this program, are attempting to compel as much disclosure on this program as possible, with the ACLU as valuable allies.