One congressman says it’s “shocking” how the Obama administration is now using the Patriot Act. But a senator says the secret court order for American phone records is “lawful.”
The Patriot Act, the landmark law born out of the September 11, 2001, terror attacks, is at the center of an emerging controversy Thursday over how the Obama administration obtained a secret court order for phone records from the Verizon Business Network Service from April to July this year.
The administration is accused of making a secret interpretation and going too far in that interpretation of the anti-terrorism law, specifically a portion called Section 215.
Even before this week’s Verizon controversy, privacy advocates had long criticized Section 215 as vastly expanding the FBI’s power to spy on Americans.
The Verizon case apparently marks a difference between Presidents Barack Obama and George W. Bush in obtaining phone records, according to Tyler Newby, a former federal computer crime prosecutor under both administrations.
The Bush administration also collected phone logs — the same sort of “metadata” that the Obama administration is gathering from Verizon — and even conducted wiretaps, but it did so without getting a court order.
Now the Obama administration is invoking the Patriot Act’s Section 215 — as well as the Foreign Intelligence Surveillance Act — as the basis for a secret court order demanding Verizon records that show originating and terminating phone numbers, their location, time and duration. The FISA court’s proceedings, held in Washington, are secret.
“It’s pretty broad authority that Section 215 gives the FBI,” said Newby, who worked in the U.S. Justice Department between 2007 and early 2011.
“It’s important to note that this order does not permit the collection of the content of communications, so it’s not a wiretap,” said Newby, who now works for a Silicon Valley-based law firm that represents Facebook, Google and other companies on privacy and law compliance issues.
“That’s important because if you’re collecting content, then there is a privacy interest of individuals,” Newby said Thursday. “With these business records — what the government is calling telephony metadata — there is not the same expectation of privacy.
“Presumably this is going into a large and sophisticated data-mining database, looking for patterns and call activities” relating to terrorism, Newby added.
The secret court order, however, is drawing strong criticism, even from within Obama’s Democratic Party.
Former Vice President Al Gore wrote on Twitter: “Is it just me, or is secret blanket surveillance obscenely outrageous?”
Added Sen. Mark Udall, D-Colorado, who serves on the Senate Intelligence Committee: “While I cannot corroborate the details of this particular report, this sort of wide-scale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking.”
Udall and Sen. Ron Wyden, D-Oregon, who also serves on the Intelligence Committee, accused Attorney General Eric Holder in a letter last year of making “secret interpretations of public laws.”
“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act,” which deals with “business records,” they wrote.
But Sen. Dianne Feinstein, D-California, described the FISA court order as “the exact three-month renewal of what has been the case for the past seven years.”
“This renewal is carried out by the FISA court under the business records section of the Patriot Act.
Therefore it is lawful. It has been briefed to Congress,” Feinstein said. “Terrorists will come after us if they can, and the only thing that we have to deter this is good intelligence to understand that a plot has been hatched and to get there before they get to us.”
Many analysts cited how federal surveillance of phone records could prove useful.
“Think of the Boston Marathon bombings,” said Fran Townsend, a CNN contributor and former Homeland Security adviser to President George W. Bush.
Phone records could have proved valuable in tracking the suspects in that terror attack, Townsend said.
“What numbers were they calling? Who were their associates? You may find witnesses,” Townsend said.
Sen. Saxby Chambliss of Georgia, the Intelligence Committee’s ranking Republican, said the surveillance is nothing new. The gathering of phone records “has proved meritorious because we have gathered significant information on bad guys and only on bad guys over the years,” he said.
Michael Martinez | CNN