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Senators Say DOJ is Lying About the PATRIOT Act

September 22, 2011 - by Donny Shaw

It’s always nice to see members of Congress challenging secrecy, lies, and privacy violations from the executive branch. As Charlie Savage reports at the New York Times, Democratic Senators Ron Wyden [OR] and Mark Udall [CO] wrote to Attorney General Eric Holder yesterday accusing him of using secret legal opinions to miselad the public on how the PATRIOT Act is really being used.

Mr. Wyden and Mr. Udall have for months been raising concerns that the government has secretly interpreted a part of the Patriot Act in a way that they portray as twisted, allowing the Federal Bureau of Investigation to conduct some kind of unspecified domestic surveillance that they say does not dovetail with a plain reading of the statute.

The dispute has focused on Section 215 of the Patriot Act. It allows a secret national security court to issue an order allowing the F.B.I. to obtain “any tangible things” in connection with a national security investigation. It is sometimes referred to as the “business records” section because public discussion around it has centered on using it to obtain customer information like hotel or credit card records.

But in addition to that kind of collection, the senators contend that the government has also interpreted the provision, based on rulings by the secret national security court, as allowing some other kind of activity that allows the government to obtain private information about people who have no link to a terrorism or espionage case.

This “other kind of activity” likely involves geolocation monitoring using data from people’s cell phones. As Julian Sanchez describes in the excellent post at Cato@Libery, all the evidence points to the existence of a secretive and massive geolocation datamining program that includes suspected terrorists, people they may communicate with, people those people may communicate with, and so on down the line. Such a program woud require the government to have access to private information involving millions of innocent civilians.

Unfortunately, the PATRIOT Act was reauthorized by Congress this summer until June of 2015 with no reforms. Sen. Wyden has introduced standalone legislation, the GPS Act, to require a specific court order for the government to obtain geolocation tracking data on an individual under the PATRIOT Act and any other program, but so far the bill has not attracted any co-sponsors.

Meanwhile, Congress is advancing new legislation that could give the government access to more private information about innocent civilians. The Protecting Children from Internet Pornographers Act, which has been approved by the Judiciary Committee, would require all internet service providers to retain customer records and hand them over to law enforcement agents for any purpose. Just like how the PATRIOT Act is not used exclusively, or even primarily, for going after terrorism, the Protecting Children from Internet Pornographers Act would not be used only for catching child pornographers. When ow of the bill’s primary co-sponsors, Rep. Debbie Wasserman Schultz [D, FL-20], was asked by NPR whether she would add language to the bill to limit it to just child pronography cases, she responded, “um, no.”

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