Patriot Act Author Objects to NSA Section 215 Interpretation
Congress never intended for Section 215 of the Patriot Act to authorize the phone surveillance the National Security Agency has engaged in, said an author of the 2001 law. House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., filed an amicus brief Wednesday in support of an American Civil Liberties Union lawsuit against Director of National Intelligence James Clapper, NSA Director Keith Alexander, Defense Secretary Chuck Hagel, Attorney General Eric Holder and FBI Director Robert Mueller, filed in the U.S. District Court in New York in late August (WID Aug 29 p1). The NSA had asked the court to dismiss the lawsuit and defended its surveillance. Sensenbrenner plans to follow up his concerns with new surveillance legislation introduced once the congressional recess ends.
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Sensenbrenner’s brief “disputes that Congress intended to authorize the program challenged by this lawsuit, namely, the unprecedented, massive collection of the telecommunications data of millions of innocent Americans,” it said (http://bit.ly/14uKqfR). “Indeed, the unfocused dragnet undertaken by Defendants is exactly the type of unrestrained surveillance Congress, including amicus, tried to prevent.” Sensenbrenner argued the court should ignore the motion to dismiss and wants a preliminary injunction, halting the program.
During a stop in Stockholm Wednesday, President Barack Obama said U.S. laws may be insufficient in addressing surveillance and described the “risks of abuse” (WID Sept 5 p8). He backed surveillance reform last month and created a five-member surveillance review group intended to offer independent recommendations by the end of this year.
Sensenbrenner met with Obama in the Oval Office Aug. 1 along with several other lawmakers, prompting Sensenbrenner to announce a plan to introduce a bill on surveillance, his office said then. “Following the August recess, I intend to introduce legislation to ensure Section 215 of the Patriot Act is properly interpreted and implemented,” Sensenbrenner said in a statement (http://1.usa.gov/14uTRf8). “The bill will ensure the dragnet collection of data by the NSA is reined in, safeguards are established to significantly increase the transparency of the [Foreign Intelligence Surveillance Act] Court and protections are put in place for businesses who work with the government.” Sensenbrenner still hopes to introduce a bill in the near future when it’s ready, his spokesman said Thursday, saying the proposed bill, broadly speaking, addresses what Sensenbrenner sees as the government’s misinterpretation of the Patriot Act and is intended to add transparency to the FISA court process.
The NSA has defended its practices. A spokeswoman declined comment on the lawsuit and brief but pointed us to its Aug. 9 paper (http://1.usa.gov/19Zwf9v), released after Obama’s press conference on surveillance reform. The NSA paper outlines the provisions that it believes enable its practices, including Section 215, and indicate the importance of collecting phone metadata. “Technical controls preclude NSA analysts from seeing any metadata unless it is the result of a query using an approved identifier,” the paper argued. The ACLU has told us that ending the dragnet surveillance of phone records is the lawsuit’s goal. In a blog post this week (http://bit.ly/15yQQeb), ACLU flagged the growing support it has received, citing Sensenbrenner as well as the National Rifle Association, the Reporters Committee for Freedom of the Press and the PEN American Center, a literary association that says it defends free expression.
Sensenbrenner chaired the House Judiciary Committee after the Sept. 11 terrorist attacks, at the time the Patriot Act was enacted. The Electronic Frontier Foundation filed the brief on Sensenbrenner’s behalf, it said in a press release Wednesday (http://bit.ly/1aSBeZR). “The NSA admits that the vast majority of the records it collects bear no relation to terrorism,” EFF Senior Staff Attorney David Greene noted in a statement, saying the NSA surveillance’s “limitless scope vastly exceeds what Congress intended.” Greene drafted the brief. EFF sued the NSA in July separately but called the Sensenbrenner filing “another prong in EFF’s robust strategy to end the collection of millions of innocent Americans’ telecommunications data.” The ACLU asked Sensenbrenner to file the brief, and EFF offered to help draft it pro bono, Sensenbrenner’s spokesman said.
"The released FISA order requires daily productions of the details of every call that every American makes, as well as calls made by foreigners to or from the United States,” Sensenbrenner wrote in a June 9 Guardian op-ed (http://bit.ly/19mwLLg), published not long after the leaks from former NSA contractor Edward Snowden. “Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigation?” He called the NSA’s interpretation of the Patriot Act “an abuse of that law.”
Sensenbrenner’s brief reiterates these objections and those in several other op-eds he published in different publications throughout recent months. “Even if Section 215 granted intelligence agencies enhanced powers with respect to terrorism investigations, Congress cannot be said to have implicitly authorized a program that reaches so much farther than any program previously approved by any court in any context,” the brief said. Congress is expected to hold hearings on the various surveillance controversies after recess ends this week.