Back in May, during the debates over reauthorization of the Patriot Act, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) began raising a fuss about a secret interpretation of the law’s so-called “business records” authority, known to wonks as Section 215, arguing that intelligence agencies had twisted the statute to give themselves domestic surveillance powers Congress had not anticipated or intended. At the time, I marshaled a fair amount of circumstantial evidence that, I thought, suggested that the “secret authority” involved location tracking of cell phones. Wyden backed off after being promised a secret hearing to address his concerns—but indicated he’d be returning to the issue if he remained unsatisfied. The hearing occurred early last month. Now I suspect we’re seeing the other shoe dropping.
At a confirmation hearing this morning for Matthew Olsen, who’s been tapped to head the National Counterterrorism Center, Wyden repeatedly asked the nominee whether the intelligence community “use[s] cell site data to track the location of Americans inside the country.” This comes on the heels of a letter Wyden and Udall sent to Director of National Intelligence James Clapper demanding an answer to the same question. Olsen was unsurprisingly vague, calling it a “complicated question” but allowing that there were “certain circumstances where that authority may exist.” The committee was promised a memo explaining those “circumstances” by September. That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.
On a related note, one of the data points I cited in my previous post was that Wyden’s Geolocation Privacy and Surveillance Act had, somewhat unusually, been structured primarily as a reform to the Foreign Intelligence Surveillance Act (FISA), which governs intelligence spying, only later incorporating the same protections into the statutes governing ordinary criminal investigations. Especially striking was the inclusion of a specific prohibition on the use of Section 215 for location tracking, above and beyond the general warrant requirement. Since that writing, however, the bill gained Republican co-sponsorship, and dropped the changes to FISA that had previously been the bill’s centerpiece. Instead, the bill now contains an explicit exception for FISA “electronic surveillance,” in addition to the section providing for location tracking authorized by either a criminal or a FISA warrant. I’m not privy to whatever negotiations necessitated that change, but it’s hard to imagine anyone would have insisted on such a substantial restructuring if the intelligence community weren’t doing at least some location tracking pursuant to a lower standard than probable cause.
It’s not entirely clear exactly what the current version of the bill would permit, however. FISA is mentioned twice in the draft: once as part of a vague general exemption for “electronic surveillance,” and then again as one of the sources of authority for a “warrant” to do geolocation tracking. At a first pass, though, those two definitions ought to overlap, because FISA requires a secret intelligence court to issue a warrant based on probable cause (to believe the target is an “agent of a foreign power”) for government monitoring that falls within the FISA’s definition of “electronic surveillance,” in contrast with the far laxer standards that apply to the use of Section 215. It’s therefore an interesting puzzle what, exactly, that exception is meant to permit. Possibly the idea is to permit the (otherwise prohibited) “use” and “disclosure” of geolocation information already obtained without a warrant in order to target future judicially authorized “electronic surveillance,” but it’s hard to be sure. What does seem increasingly sure, however, is that location tracking is connected to the controversy over Section 215—and that Congress owes the American people a debate over the proper use and scope of that power, which it has thus far refused to have.