Intelligence Chief To Wyden: It Would Be Difficult To Reveal What You Want Us To Reveal Because We Don't Want To Reveal It

Say That Again

from the got-it dept

We’ve been covering Senators Ron Wyden and Mark Udall’s attempts to get folks working in national intelligence to explain their secret interpretation of certain provisions of the PATRIOT Act. It hasn’t been too difficult to piece together the implication that the government has interpreted the already controversial Section 215 of the PATRIOT Act to allow it to gather geolocation data of pretty much anyone in the US from their mobile phone provider without a warrant or any other oversight. If you’re unfamiliar with it, Section 215 was the part of the PATRIOT Act that allowed the feds to demand “any tangible thing (including books, records, papers, documents and other items),” from an organization, just as long as the records are being asked for “in connection with” a terrorism investigation.

A while back, there was an attempt to change the language of the law to make it specific that the collection of such records had to actually be about a terror subject, rather than the much broader initial definition (how hard is it to claim that collecting any data is “in connection with” a terrorism investigation these days?) Combined with a few other novel legal theories, and some convoluted loophole finding, it appears likely that the feds believe they can get pretty much realtime info on almost anyone without any warrant, which allows them to do all sorts of things that seem to go way beyond what people would normally think of as a “reasonable” search.

Of course, the feds don’t want to admit that this is how they’re (ab)using the PATRIOT Act. However, Senator Wyden has been pretty insistent in asking intelligence officials about the federal government’s authority to collect geolocation info. He recently asked this question specifically to Director of National Intelligence James Clapper… who has provided a display in tap dancing as an answer. You can see the full letter from Clapper below, but the key point:

The questions you pose on geolocational information are difficult to answer in an unclassified letter. It is our understanding, based on a conversation with your staff, that you are most interested in learning about the government’s authority to collect cell phone mobility data of American citizens in the United States for intelligence purposes. As you acknowledge, the government has some authority to collect cell phone mobility data under appropriate circumstances but there have been a diverse set of rulings concerning the quantum of evidence and the procedures required to obtain such information. We will work closely with the relevant agencies to define the government’s view of the full contours of this authority and will get back to you.

In other words, we can’t tell you what you want to know because that would look bad. Still, this answer definitely seems to further confirm Julian Sanchez’s original speculation on what was going on here. In that report, he discussed the government’s highly questionable “hybrid theory,” of picking and choosing tiny pieces of different statutes, to put together the fake authority to get location info without a warrant. As Sanchez noted at the time, “many courts have been skeptical of this theory and rejected it–but at least some have gone along with this clever bit of legal origami…”

That certainly sounds like the “diverse set of rulings,” mentioned in the letter.

The rest of the letter is full of similar tap dancing, explaining the rather plain interpretation of what the laws seem to say (i.e., they’re not supposed to track Americans in the US), but any time it gets close to actually revealing the “secret” interpretations or the results of those interpretations, the letter basically says “that’s not possible.” For example, there’s this:

While it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed…

In other words, yeah, we’re spying on so many people we can’t even count ’em all.

The letter, of course, points out repeatedly that intelligence agencies report the answers to what Wyden is asking in classified briefings. In other words, they’re saying “hey, look, we already provided the answers to your questions in secret, and you know the answers and we know you know the answers, and we sure as hell don’t want the public to know the answers.” When Senator Wyden brought this issue up a couple months ago, he noted that if the public knew these answers, it would make them “angry.” It seems that the intelligence folks don’t want the public angry… but sure as hell don’t want to give up their broad and questionable interpretation of the PATRIOT Act.

Filed Under: geolocation, james clapper, mark udall, patriot act, privacy, ron wyden