OFF THE WIRE
The FBI has dramatically increased its use of a controversial provision of
the Patriot Act to secretly obtain a vast store of business records of U.S.
citizens under President Barack Obama, according to recent Justice Department
reports to Congress. The bureau filed 212 requests for such data to a national
security court last year – a 1,000-percent increase from the number of such
requests four years earlier, the reports show.
The FBI’s increased use of the Patriot Act’s “business records” provision —
and the wide ranging scope of its requests -- is getting new scrutiny in light
of last week’s disclosure that that the provision was used to obtain a
top-secret national security order requiring telecommunications companies to
turn over records of millions of telephone calls.Taken together, experts say, those revelations show the government has
broadly interpreted the Patriot Act provision as enabling it to collect data not
just on specific individuals, but on millions of Americans with no suspected
terrorist connections. And it shows that the Foreign Intelligence Surveillance
Court accepted that broad interpretation of the law.
“That they were using this (provision) to do mass collection of data is
definitely the biggest surprise,” said Robert Chesney, a top national security
lawyer at the University of Texas Law School. “Most people who followed this
closely were not aware they were doing this. We’ve gone from producing records
for a particular investigation to the production of all records for a massive
pre-collection database. It’s incredibly sweeping.”
The Justice Department and FBI did not respond to requests for comment. But
in a recent interview with NBC News, Director of National Intelligence James
Clapper dismissed the idea that the records were being used to spy on innocent
Americans. “The notion that we’re trolling through everyone’s emails and
voyeuristically reading them, or listening to everyone’s phone calls is, on its
face, absurd,” he said. “We couldn’t do that even if we wanted to.”
But little-noticed statements by FBI Director Robert Mueller in recent years
– as well as interviews with former senior law enforcement officials – hint at
what Chesney calls a largely unnoticed “sea change” in the way the U.S.
government collects data for terrorism and other national security
investigations.
The Patriot Act provision, known as Section 215, allows the FBI to require
the production of business records and any other “tangible things” -- including
“books, records, papers, documents and other items,” for an authorized terrorism
or foreign intelligence investigation. The Patriot Act was a broad expansion of
law enforcement powers enacted by Congress with overwhelming bipartisan support
in the aftermath of the Sept. 11, 2001, terrorist attacks. In addition to
Section 215, other provisions expanded the FBI’s power to issue so-called
“national security letters,” requiring individuals and business to turn over a
more limited set of records without any court order at all.
In contrast to standard grand jury subpoenas, material obtained under both
Section 215 orders and national security letters must be turned over under
so-called “gag orders” that forbid the business or institution that receives the
order from notifying its customers or publicly referring to the matter.
From the earliest days of the Patriot Act, Section 215 was among the most
hotly disputed of its provisions. Critics charged the language – “tangible
things” -- was so broad that it would even permit the FBI to obtain library and
bookstore records to inspect what citizens were reading.
Ashcroft confronted criticism
Largely to tamp down those
concerns, then-Attorney General John Ashcroft declassified information about the
FBI’s use of the provision in September 2003, saying in a statement that “the
number of times Section 215 has been used to date is zero.” Ashcroft added that
he was releasing the information “to counter the troubling amount of public
distortion and misinformation” about Section 215.
But in the years since, the FBI’s use of Section 215 quietly exploded, with
virtually no public notice or debate. In 2009, as part of an annual report to
Congress, the Justice Department reported there had been 21 applications for
business records to the Foreign Intelligence Surveillance Court (FISC) under
Section 215 – all of which were granted, though nine were modified by the court.
(The reports do not explain how or why the orders were modified.)
In 2010, the number of requests jumped to 205 (all again granted, with 176
modified.) In the latest report filed on April 30, the department reported there
had been 212 such requests in 2012 – all approved by the court, but 200 of them
modified.
These sharp increase in the use of Section 215 has drawn little attention
until now because the number of national security letters (NSLs) issued by the
bureau has been so much greater -- 15,229 in 2012. But FBI Director Mueller, in
little-noticed written responses to Congress two years ago, explained that the
bureau was encountering resistance from telecommunications companies in turning
over “electronic communication transaction” records in response to national
security letters.
“Beginning in late 2009, certain electronic communications service providers
no longer honored NSLs to obtain” records because of what their lawyers cited as
“an ambiguity” in the law. (What Mueller didn’t say was this came at a time when
all the major telecommunications companies were still facing lawsuits over their
cooperation with the government on surveillance programs.) As a result, Mueller
said, the FBI had switched over to demanding the same data under Section 215.
“This change accounts for a significant
increase in the volume of business records requests,” Mueller wrote.
What was not explained at the time, Chesney notes, is that the FBI was using
the Section 215 requests to obtain a broad array of records. For example, a
top-secret FISC
order disclosed last week by the Guardian showed that the FBI had used a
single Section 215 request to direct Verizon to turn over “all call detail
records or telephony metadata’’ of its customers for a three month period,
literally millions of records.
Saying they wanted to put an end to “secret law, eight U.S. senators — led
by Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah — on Tuesday introduced a
bill to require the Justice Department to declassify national security court
decisions that have permitted the use of the “business records” provision for
such purposes.
That followed a court filing Monday by the American Civil Liberties Union and
allied groups asking the surveillance court to release its classified legal
opinions question that have allowed the expanded use of Section 215.
The motion, filed “pursuant to the First Amendment,” the ACLU states, and
under rules that, in some circumstances, permit petitions to the FISC, also
cites statements by two Democratic U.S. senators, Ron Wyden of Oregon and Mark
Udall of Colorado, and Obama to justify public disclosure.
Related story
On
the run and out of a job: Consulting company fires professed NSA
leaker
“When the American people find out how their government has secretly
interpreted the Patriot Act, they will be stunned and they will be angry,” it
quoted Wyden as saying in 2011.
It also cited Obama words after last week’s disclosure of the Verizon order:
“I welcome this debate.”
The motion also asks the court to consider the constitutionality of the “gag
order” written into Section 215.
“There should be no room for secret law,” said Jameel Jaffer, the ACLU’s
deputy legal director, adding that disclosure of the FISC rulings is essential
if the debate Obama called for is to take place. “The public has a right to know
what limits apply to the government’s surveillance authority, and what
safeguards are in place to protect individual privacy.”
