Locational Tracking and the "Secret Patriot Act" Provision

Just last week, and before that in a recent op-ed I wrote on the Patriot Act, I've mentioned what some call "Secret Patriot Act" provisions and whether they relate to the government using cellular data to track Americans as they move around the U.S.

Here's the key point: the government has been claiming information regarding its interpretations and uses of the Patriot Act - particularly in relation to surveillance of American citizens - is classified. What tipped people like myself off that something was especially fishy were Senators Ron Wyden and Mark Udall sounding the alarm bells consistently and passionately for months now regarding this "secret legal interpretation" of the Patriot Act  - one they claim is so broad that it gives the government massive domestic surveillance powers.

Wyden recently even said, "When the American people find out how their government has secretly interpreted the Patriot Act they will be stunned and they will be angry." And, as a member of the Senate Intelligence Committee Wyden is in a position to know, as he receives classified briefings from the executive branch. 

Their requests for transparency has of course been met with obfuscation and denial from the Administration and Justice Department.

The good news is that Senator Wyden doesn't appear ready to take "no" for an answer, and is using the re-authorization of the Foreign Intelligence Surveillance Act (FISA) - adopted in 2008 essentially legalizing President George W. Bush’s “warrantless wiretapping” program - as the vehicle to get answers.

This FISA 2.0 law - abhorred by privacy advocates and civil libertarians - is set to expire by the end of next year, and is currently being heard in the Senate's Select Committee on Intelligence, of which Wyden is a member.

Of course, as has become typical when it comes to issues like privacy and surveillance, this proposed 2 1/2-year extension was inserted without any public notice into the Intelligence Authorization Act for the fiscal year that begins Oct. 1.  

As AP reported, "The move was unusual because it took place a full year and a half before the law's expiration date. Ordinarily, a proposed extension isn't brought up until closer to the expiration date of the law."

The bad news is that the intelligence bill was approved Monday by the Committee on Intelligence, would extend the 2008 changes until 2015. As the LA Times noted, "Those changes greatly expanded the government’s surveillance authorities. The targets must be foreigners out of the country, but their conversations with Americans are fair game. Senator vows to block surveillance bill over privacy concerns."

Also unfortunately, a measure by Sens. Ron Wyden and Mark Udall that would have forced the U.S. intelligence chief, and by extension the entire intelligence community, to admit that they went too far in their Patriot Act interpretations, was defeated.  

Essentially, Wyden and Udall asked that their colleagues include a measure compelling the Director of National Intelligence and the Attorney General to produce a “detailed assessment of the problems posed by the reliance of government agencies” on “interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public.” 

Specifically, Attorney General Eric Holder and Director of National Intelligence James Clapper would have to produce “a plan for addressing such problems” with secret legal interpretations regarding the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act.

The Committee also rejected an amendment by Wyden and Udall that would have required the Justice Department to estimate how many Americans have been eavesdropped on, in violation of another surveillance law, the FISA Amendments Act of 2008. That amendment was voted down, 7-8.

Now, while we can't be sure what these senators are referring to, the evidence suggests, and some assert, that the current administration is using Section 215 of the Patriot Act - a provision that gives the government access to "business records" - as the legal basis for the large-scale collection of cell phone location records. 

And remember, mobile telephone users have LOTS of reasons to be concerned about this too. Consider:

• In just a 13-month period, Sprint received over 8 million demands for location information;  
• Michigan police sought information about every mobile phone near the site of a planned labor protest;
• This spring, researchers revealed that iPhones were collecting and storing location information;
• Just last week, the general counsel of the National Security Agency suggested to members of Congress that the NSA might have the authority to collect the location information of American citizens inside the U.S.

Watch Wyden here!

Now, in response to this string of setbacks and stonewalling, Senator Wyden is vowing to block the surveillance bill altogether! The Los Angeles Times has more:

Sen. Ron Wyden (D-Ore.) will seek to block passage of an intelligence bill that extends the government’s eavesdropping authorities because the intelligence community won’t say how many Americans are being monitored... 

... 

"Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States,” Wyden said in a statement. “The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended,” Wyden wrote. “I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA

After first opposing them, then-Sen. Obama voted for the 2008 FISA changes, which gave legal immunity to telecom companies that cooperated with Bush’s spying program. He said he became convinced the capabilities were needed to hunt for terrorists.

...

Wyden also wants to know to what extent the government is tracking the location of Americans using data from their cellphones. Mobile devices are regularly telling their networks where they are, even when the use is not making a call, and that data is regularly used by law enforcement to track criminal suspects and fugitives. Whether intelligence agencies are doing that domestically is an open question.

...

“During a July 2011 committee hearing, the general counsel of the National Security Agency acknowledged that certain legal pleadings by the executive branch and court opinions from the Foreign Intelligence Surveillance Court regarding the Patriot Act are classified,” Wyden and Udall said in dissent included in the Senate committee report on the bill. “We have had the opportunity to review these pleadings and rulings, and we believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret.”

...

Wyden said he is placing a “hold” on the bill, a parliamentary maneuver that will make it much more difficult to pass. “I regret that the amendment that Sen. Udall of Colorado and I offered was not adopted, but I obviously plan to keep trying to get more information about the effects of this law,” Wyden said. “I hope that I will find out that no law-abiding Americans, or at least very few, have had their communications reviewed by government agencies as a result of this law, but I believe that I have a responsibility to get concrete facts rather than just hope that this is not the case.  And I believe that it would be not be responsible for the Senate to pass a multi-year extension of the FISA Amendments Act until I and others who have concerns have had our questions answered.” 

Click here to read more. 

While its heartening, and frankly inspiring, to see an elected official stand so strongly in favor of the bill of rights at a time when they are viewed with such disdain by governmental and corporate power, I'm perhaps more disheartened by the fact that the Wyden/Udall Amendments can't even pass out of a Democratic controlled Committee. As for Obama's flip flopping and betrayals on privacy and civil liberties related issues, this is now expected.

It should be noted however that Senator Wyden is by no means on his own in the locational tracking and transparency fight. Just today the ACLU of California demanded information on how police are using surveillance technology to track people. The group has asked for public records from more than 50 police agencies across state focusing on mobile phone location data, GPS tracking, information gathered from social networking sites.

From the groups release: "Demanding to know when, why, and how police are using mobile phone location data and deploying other surveillance technologies to track the people they are responsible for protecting and serving, the ACLU of California sent requests to more than fifty law enforcement agencies across the state today.  Today’s requests are part of the ACLU’s Demand your dotRights Campaign, designed to make sure that as technology advances, our privacy rights are not left behind. The Public Request Act inquiries are being filed in coordination with 33 American Civil Liberties Union affiliates across the nation.

“The public has a right to know how and under what circumstances their personal information is being accessed by the government," said Peter Bibring, staff attorney with the ACLU of California.  "A detailed history of someone's movements – or the email and photographs stored in their mobile device - is extremely personal and exactly the kind of private information that the Fourth Amendment was written to protect." 

In addition to the collection of mobile phone location data, the ACLU of California is asking the same questions about law enforcements’ use of information gathered from social networking sites, book providers, GPS tracking devices, automatic license plate readers, public video surveillance cameras and facial recognition technology.

Police agencies are being asked for information including:

• Statistics on how agencies are obtaining, using, storing and sharing personal information;
• The stated purpose for gathering personal information, guidelines on how long the data is kept, when and how it is deleted, and whether privacy safeguards exist;
• Training curricula, policies or protocol provided to officers to guide them in the use of these powerful new surveillance tools, including the capture of information from social networking sites like Facebook and Twitter;
• Whether police demonstrate probable cause and obtain a warrant to access mobile phone location data and to collect other detailed personal information, or take a dragnet approach that captures data on individuals who are not suspected of wrongdoing;
• The effectiveness of the use of digital surveillance in identifying or arresting suspects.

“Unless we require transparency on the part of police agencies, powerful new methods of surveillance will become powerful new methods of invading our privacy,” said ACLU of California  attorney Linda Lye.

With Congress considering new legislation to better safeguard location information and the U.S. Supreme Court poised to hear a case about the privacy of location data in the context of GPS tracking devices, it is essential for the American public to have a clear picture about when, why, and how law enforcement are obtaining sensitive location information.

“It’s important to understand whether police agencies are using new surveillance technologies in ways that serve legitimate law enforcement goals and actually make us safer,” said ACLU of California attorney David Blair Loy."