Way back in 2011 — when “Snowden” was just a quiescent indie band from Atlanta—I wrote two posts here at the Cato blog trying to suss out what the “secret law” of the Patriot Act that Sen. Ron Wyden (D‑OR) and others were raising alarms about might involve: “Atlas Bugged” and “Stalking the Secret Patriot Act.” Based on what seemed like an enormous amount of circumstantial evidence — which I won’t try to summarize here — I speculated that the government was likely engaged in some kind of large scale program of location tracking, involving the use of the Patriot Act’s Section 215 to bulk collect cell phone location records for data mining purposes.
I remained reasonably confident in my guess until the disclosure of the Section 215 bulk call records program, which was soon followed by insistent public statements from NSA officials that they did not collect location records “under this program.” That ubiquitous qualifier certainly left some wiggle room, but naturally the government collects location information in some circustances for intelligence purposes — at the very least when it has a FISA warrant for full electronic surveillance of a specific target — and it seemed only natural that if the government was engaged in bulk location tracking and data mining, it would obtain that information in tandem with its bulk collection of call detail records. So, I concluded, I had probably guessed wrong: The secret Section 215 program did involve bulk collection of phone records — but not phone location records.
Then, last week, Wyden gave a barnburner of a speech on NSA surveillance at the Center for American Progress — one that makes me think I may have guessed correctly after all. Between his talk and the question and answer sessions that followed, Wyden explicitly mentioned location tracking no fewer than five separate times — discussing it far more frequently than the program we actually know about, involving bulk collection of call records:
[A]s you listen to this talk, ponder that most of us have a computer in our pocket that potentially can be used to monitor us 24/7. […]
This is particularly true if you’re vacuuming up cell phone location data, essentially turning every American’s cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans’ location information in bulk. […]
The piece of technology we consider vital to the conduct of our everyday personal and professional life hapens to be a combination phone bug, listening device, location tracker, and hidden camera. […]
Today, government officials are openly telling the press that they have the authority to effectively turn Americans’ smart phones and cell phones into location‐enabled homing beacons. […]
These smartphones that everybody’s got in their pockets […] can be used as a tracking system for everyone in this room, 24/7.
This is not exactly subtle. Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records. Wyden, of course, would know full well whether there is or is not any such program via his role on the Intelligence Committee — and his focus on location tracking over the activities we know NSA is engaged in, such as monitroing of Internet communications and bulk collection of phone records, would be an inexplicable obsession if he knew that no such program existed.
There’s another hint along these lines early in the talk, when Wyden says that “secret rullings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act as well as section 702 of the FISA statute in some surprising ways.” Wyden says that these rulings “can be astoundingly broad” and then adds: “The one that authorizes the bulk collection of phone records is as broad as any I have ever seen.” (Emphasis mine.) That’s a very specific word choice: not broader than any he has seen, or the broadest ruling he has seen — even though a ruling authorizing bulk collection of every American’s phone records would be the broadest anyone without access to classified information had ever seen — but rather as broad. As in: there are other rulings of comparable breadth, perhaps allowing bulk collection of other types of information about all Americans. Wyden gestures in this direction again later, calling it “especially troubling” that “there is nothing in the Patriot Act that limits this sweeping bulk colection to phone records.”
If this sounds like overreading, consider that actually it’s consistent with several Senators’ previous efforts to hint at the nature of their concerns without directly exposing classified programs. As Wyden noted at the outset of his talk, he and his colleague Mark Udall (D‑CO) may not be able to “tap out the truth in Morse code,” but they have “tried just about everything else we could think of to warn the American people.” That means they have often, without explicitly disclosing classified information, given some very strong hints to what they were concerned about to those of us paying close attention. For instance, as I noted in one of those prior posts, Sen. Udall frequently explained his concerns using the same specific, and rather curiously worded example, warning that Section 215 gave the government “unfettered” access to “business records ranging from a cell phone company’s phone records to an individual’s library history.” (Emphasis mine.) The pointed contrast between “an individual’s” library records and “a cell phone company’s” phone records was, in retrospect, about as close as Udall could come to explicitly warning that phone records were being collected in bulk, not merely for specifically targeted individuals. Perhaps this talk was as close as Wyden can come to warning us — without coming right out and saying it — that there’s a bulk location tracking program yet to be disclosed.