More Transparency, Checks and Balances Needed in Surveillance Laws and Court, Wyden Says

Smartphones give the government the ability to track and monitor Americans, said Wyden. “The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed,” he said. Wyden issued a warning to the government to “reform our surveillance laws and practices” during this “unique moment in our constitutional history” or “we will regret it.” While the Patriot Act and the FISA Amendments Act were enacted during the Bush administration, Wyden said he sees the Obama administration as part of the problem. In summer 2009, Wyden received a written commitment from the Justice Department and the Office of the Director of National Intelligence to redact and release FISC opinions. “In the last four years, exactly zero opinions have been released,” said Wyden.

The collection of bulk phone records under Section 215 of the Patriot Act is particularly troubling, said Wyden. “If you know who someone called, when they called, where they called from and how they long they talked, you laid bare the personal lives of law-abiding Americans to the scrutiny of American bureaucrats and outside contractors.” The program could go a lot further with other bulk data records from third parties, he said: “If it is a record held by a business, membership organization, doctor, or school, or by another third party, it could be subject to bulk collection under the Patriot Act."

President Barack Obama should create a presidential commission to examine the legal framework of balancing technological advances with civil liberties in the government and private sector, said John Podesta, CAP chairman and chief of staff to former President Bill Clinton, in his introduction of Wyden. “New products and services, increasing processing power, and the decreasing cost of storing huge amounts of data means that surveillance on an unprecedented scale is now not just technologically possible, but it is financially feasible for the first time,” said Podesta. CAP released a report Tuesday addressing the need to update online privacy laws and the privatization of intelligence gathering (http://bit.ly/16WOaXI). Its report backs clear and updated rules for online privacy, ensuring government intelligence functions remain in public hands, reforming oversight to balance national security actions with legal protections and establishing a presidential commission to examine these issues. “We need to update our laws governing online privacy to take into account the evolution of these technologies to ensure that the right to privacy guaranteed by the Constitution is preserved in this new era of information technology and telecommunications,” said Peter Juul, CAP policy analyst, in a statement (http://bit.ly/16X3DqM/).

Wyden’s remarks about transparency follow last week’s push for lawmakers and the courts to take action and enable more transparency, TechFreedom President Berin Szoka told us. The House is expected to vote Wednesday on two amendments concerning the National Security Agency (NSA) in the 2014 Department of Defense Appropriations Act, said Szoka. An amendment by Rep. Justin Amash, R-Mich., would bar the NSA from collecting logs of phone calls and Internet use under the Foreign Intelligence Surveillance Act about anyone who is not the “subject of [a] national security investigation,” said Szoka. An amendment by Rep. Richard Nugent, R-Fla., is a “decoy amendment” that would not alter the government’s use of Section 215 to obtain bulk phone communications records, said Rainey Reitman, Electronic Frontier Foundation activism director, in a blog post Tuesday (http://bit.ly/132jiHG). The Amash amendment would defund “blanket surveillance” and it would give “Congress the time to rewrite the law,” said Szoka.