Prying Provokes Privacy Protection

A year before most of us knew that the National Security Agency was routinely collecting our phone records, Ron Wyden warned that the Obama administration would regret keeping us in the dark. "When the American people find out how their government has secretly interpreted the PATRIOT Act," the Oregon Democrat said on the Senate floor in May 2011, "they will be stunned and they will be angry."

As a member of the Senate Intelligence Committee, Wyden knew about the NSA's phone record dragnet, but most of his colleagues did not. The outrage he predicted therefore was not limited to the general public; legislators were also stunned and angry, as reflected in the privacy protection bill that two House committees unanimously approved last week. By exceeding the powers that Congress thought it had granted, the Obama administration seems to have assured passage of the most significant surveillance reforms since the PATRIOT Act was approved in 2001.

The secret interpretation to which Wyden alluded involved Section 215 of the PATRIOT Act, which authorizes court orders demanding records that are "relevant" to a terrorism investigation. The Obama administration, with the blessing of the secret court created by the Foreign Intelligence Surveillance Act (FISA), read "relevant" broadly enough to encompass any collection of data that might contain information about terrorists.

As Rep. James Sensenbrenner, R-Wis., the PATRIOT Act's chief author, explained last week, "The government has misapplied the law. ... In a feat of legal and verbal gymnastics, the administration convinced the FISA court that because some records in the universe of every phone call Americans make or receive are relevant to counterterrorism, the entire universe of those calls must be relevant."

Sensenbrenner's USA FREEDOM Act, which the House is expected to approve this month, rejects that reading of the law. The bill would prohibit the mass collection of telephone metadata -- information about who talked to whom, when and for how long. Instead the government would have to seek the records of specific targets from phone companies, using court orders based on "reasonable suspicion" that the targets are involved in terrorism.

The same restrictions would apply to other kinds of data held by third parties, including information about purchases, reading habits, research interests, and medical, legal and financial matters. According to the Supreme Court, the Fourth Amendment does not apply to such records, which receive only as much protection as Congress decides to give them.

Prior to the House Judiciary Committee's vote on the USA FREEDOM Act, Rep. Zoe Lofgren, D-Calif., noted how revealing such information can be, arguing that "Congress is going to have to come to grips with ... what it means for personal privacy in the digital age." She proposed an amendment that would have raised the standard for Section 215 orders from "reasonable suspicion" to "probable cause," the requirement for searches of people and their property.

The committee overwhelmingly rejected Lofgren's amendment, anxious not to upset the compromises that had put the bill on a fast track. But she is right that we need to reconsider the legal treatment of remotely stored information, which is today's equivalent of the "papers" and "effects" that the Framers sought to protect from unreasonable searches and seizures.

The USA FREEDOM Act is a modest but significant step in that direction. In the year since news reports based on leaks from former NSA contractor Edward Snowden revealed the existence of the phone record database, President Obama has gone from portraying it as a minor and necessary encroachment on privacy to agreeing that it is neither. The Washington Post reports that the White House, which now supports eliminating the database, "insisted" that the legislation include prior judicial approval of record requests.

Whether or not Obama's conversion is sincere, it reflects a new political reality. The bipartisan panic that gave us the PATRIOT Act has been replaced by bipartisan qualms about giving the government the keys to our electronic filing cabinets.

Yada, Yada... That horse has left the barn so to say. Or as someone else said. “A bell that has been rung, cannot be un-rung.”

So for my point of view, it’s simple they’ll just hide it deeper and continue to do as they have been doing. Probably by having the collecting facility be in a different country so as to have plausible deniability.

I concur. I also think anyone that didn’t already suspect the fedgov of unlimited domestic spying as technology to do so has become available is self medicating.

It has little to do with Obama, it is the ever increasing fedgov the Founders knew would come.

Restoration of privacy will be quite an art.

First will be the restoration of the idea that improperly gathered information is *not just* inadmissible in court, but is *in and of itself* a violation of the law, so must be presented to a judge *as such*.

“While listening in to a suspect, we recorded a protected conversation.”

Judge: “Your motives for doing so are not important, compared to the keeping of such data under seal, so it is not archived or accessible by anyone other than this court.”

Second will be to reestablish the classes of protected privacy, such as between spouses, doctor-patient, lawyer-client, parent and minor child. For years these were off limits, and they should return to being so.

Third will be the creation of a single government archive for citizen data. Right now there are likely hundreds of government dossiers, with vast amounts of inaccurate data, kept by every federal agency about each citizen.

The single archive will have agency-proprietary sections to it, but will all be preserved together, so that there is at least the possibility that errors can be corrected.

And once created, then limits can be placed on individual data. And any government retention of data outside of a time limit makes further retention of data unlawful.

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