Time | June 24, 2011
By Mark Benjamin
Javier Pierini / Digital Vision / Getty Images
The U.S. Senate Intelligence Committee is weighing fresh concerns about the sweeping nature of domestic spying using one controversial section of the Patriot Act. This particular part of that law is notable because it has been divisive for years — and because during those years President Obama has quietly moved from being a Senator skeptical of the provisions to being an enthusiastic spy chief whose Administration embraces them.
Last Tuesday the committee met to consider the worries of some members, mostly Democrats, who say the Justice Department has drafted a breathtakingly broad interpretation of Section 215 of the Patriot Act.
That section allows the FBI to seize without a warrant “any tangible things,” like documents, so long as they are part of an effort to protect the country against international terrorism. The FBI can order a private company to turn over data as long as the bureau can convince a special national-security court, the Foreign Intelligence Surveillance Court, that the information is “relevant” to antiterrorism work.
Obama Administration officials emphasize that this review by the intelligence court is an important step in protecting privacy. Privacy advocates, however, consider it little more than a rubber stamp. ” ‘Relevant’ means some noncrazy reason for asking for it,” said the Cato Institute’s Julian Sanchez, who believes the government is using that authority to sweep up huge amounts of communications data.
The Intelligence Committee met in secret, and members are not permitted to say anything publicly about the deliberations. Senator Ron Wyden did tell TIME that the Justice Department opinion made the broad authority in Section 215 really broad. “When you read that opinion, the classified opinion — that I can’t say a word about — and you set it down next to the text of the law, there is a big gap,” he explained. “That is what this issue is all about.” (The American Civil Liberties Union announced in May that it was seeking the opinion through the Freedom of Information Act and would sue to get it.) (See how to encrypt your iPhone’s location data.)
Senator Tom Udall, a New Mexico Democrat, went further, saying the government was using that opinion to conduct some sort of dragnet surveillance. “Innocent Americans are being swept up in this,” was about all Udall could say to TIME.
That sounds a lot like something a certain junior Senator from Illinois might have said back in December 2005, when he joined eight other Senators in penning a dear-colleague letter that argued, among other things, that Section 215 was too broad. “We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy,” wrote Obama and the other Senators.
When efforts failed to limit spying under Section 215 to terrorists, the future President took to the Senate floor on Dec. 15, 2005, to decry the government’s power to go on what he called “a fishing expedition through every personal record or private document, through library books they’ve read and phone calls they’ve made.”
But, as they say in Washington, where you stand depends on where you sit. As Congress considered reauthorization of the Patriot Act on May 25 this year, Obama’s Director of National Intelligence, James Clapper, wrote to Senate leaders, urging them to reauthorize Section 215 and two other parts of the law in particular, or “important classified collection programs might be forced to shut down.”
Acting Assistant Attorney General Todd Hinnen noted before a House subcommittee March 9: “Some have argued that Section 215 runs afoul of the Fourth Amendment [which governs police searches] because it allows the government to obtain records upon a showing of ‘relevance’ to an authorized investigation rather than probable cause.” But, he added, “for constitutional purposes, a business-records order is not a ‘search’ within the meaning of the Fourth Amendment.”
It’s hard to say just what kind of “classified-collection program” the Obama Administration is conducting. There seems to be a consensus among privacy advocates that the government is using the very latest technological advancements to sweep up, among other things, the locations of cell phones.
Your cell phone continuously pings your service providers’ towers and base stations in order to maintain a signal for you to use. By recording the precise time and angle of a cell’s data arriving at multiple base stations, providers can calculate the location of your phone about as accurately as a GPS unit — which means down to a single room in a building, at least in cities crowded with cell towers.
Some cell carriers track, record and store this information, possibly for months, for all the phones in their networks to monitor usage and plan how to improve service.
Kevin Bankston, an attorney with the Electronic Frontier Foundation, thinks the government is demanding that cell companies provide the location data as well as other call-data records in bulk form in order to mine the data. “My guess is these 215 orders are being used to collect massive amounts of communications data without any direct connection to terrorism targets,” Bankston said.
This suspicion is based on the government’s relatively well-documented proclivity since 9/11 for vacuuming up huge amounts of data in the service of detecting patterns left by bad apples, as well as the fact that law-enforcement authorities increasingly are seeking cell-phone-location information in criminal cases. There is no reason to think the FBI would not tap the same information to prevent terrorism.
A Justice Department spokesman, Dean Boyd, said these kinds of concerns about civil liberties were overblown. “The Executive Branch, Congress and the judiciary all engage in substantial oversight of these foreign-intelligence-surveillance tools to ensure they are used responsibly and in a manner that safeguards Americans’ privacy and civil liberties,” Boyd said.
Boyd can’t say, of course, if the government is scooping up the location information of cell phones. If that is the case, however, should the government be required to get a warrant? Courts are divided over how private this location data is.
Senator Wyden recently drafted a bill that would have required the government to prove probable cause and obtain a warrant to track cell phones in both terrorism and criminal investigations. In his final bill introduced June 15, however, Wyden dropped the requirement with respect to antiterrorism efforts in a bid to gain Republican support. Wyden says he does “expect to be back to the issue as it deals with intelligence.”
Wyden’s spokeswoman has said the bill is an “independent legislative action” and the Senator can’t say if it is a signal that the government knows the location of your phone.
Correction: The original version of this story misattributed a quote to Senator Mark Udall of Colorado that was actually said by Senator Tom Udall of New Mexico. Senator Mark Udall — a member of the Intelligence Committee — did not speak directly with TIME, though he harbors similar concerns. Mark Udall said on the Senate floor May 26 that the same authority “currently allows records to be collected on law-abiding Americans, without any connection to terrorism or espionage.”