Author Of Patriot Act As Well As Members Of Church Commission Tell Court NSA Has Gone Too Far

from the wow dept

Here’s something I’d bet you never thought you’d see: the EFF teaming up with the author of the Patriot Act, Rep. Jim Sensenbrenner, to tell a court that the NSA is violating the Patriot Act. This is in the ACLU’s lawsuit over the NSA’s collection of metadata on all phone calls, which the DOJ is desperately trying to get out of. Here, Jim Sensenbrenner, with help from the EFF, has filed an amicus brief with the court, noting that the Patriot Act — which the DOJ and NSA are relying on to claim the program is legal — was never intended to allow this kind of activity. In fact, it was written to prevent this kind of activity.

The filing notes that Sensenbrenner originally received a draft of the Patriot Act from the DOJ five days after September 11, 2001, and found that it gave the government way too much power, so he redrafted the legislation specifically to prevent widespread abuses of investigative powers.

The parties can argue over the dictionary and legal definitions of the words “relevance” and “an.” But regardless of how those words are defined, one thing is clear: amicus, and the other Members of Congress who enacted Section 215, did not intend to authorize the program at issue in this lawsuit or any program of a comparable scope.

Amicus does not dispute that “relevance” is customarily given a broad meaning, and that he and his colleagues in Congress were aware of this broad meaning when they enacted and reauthorized Section 215. Nor does amicus dispute that Section 215 was intended to create a “sufficiently flexible” standard. See Defs’ Mot. to Dismiss at 24. But there is no suggestion in any legal precedent or in any statements in the legislative history that the relevance standard could justify the ongoing collection of the records of every telephone call made to or by every person on American soil, the vast majority of which Defendants concede will not be related even remotely to any terrorist activities.

To the contrary, amicus understood that “relevance” was commonly construed by the Supreme Court as a limiting factor that specifically prevented the bulk collection of records, even on a much smaller scale, on the belief that investigators might find the information useful at some point in the future.

Sensenbrenner’s is not the only interesting amicus brief. A diverse group of interested parties have filed their own briefs as well — including the NRA, Reporters Committee for Freedom of the Press and the PEN American Center. But another really interesting one was filed by former members of the Church Committee, the famous committee set up in 1975 to investigate and rein in the intelligence community after it became clear that they were abusing their powers. In this case, the filing comes from Gary Hart and Walter Mondale, two members of the Church Committee who may also be remembered for later (disastrous) attempts to run for President. This brief also involves a number of well-respected law professors who have spent a lot of time on related issues.

The full brief is well worth reading, giving the history of the Church Committee, and the FISA law which followed, and how it was designed to restrict the practices of the intelligence community and stop abuses such as widespread spying on the American public.

The government’s interpretation of “relevant” also contradicts Congress’ aim in enacting FISA. As discussed above, Congress designed the statute to be used in specific cases of foreign intelligence gathering. By limiting the targets of electronic surveillance, requiring probable cause, disallowing investigations solely on the basis of otherwise protected first amendment activities, and insisting on minimization procedures, Congress sought to restrict agencies’ ability to violate U.S. citizens’ privacy. The business records provision built on this approach, adopting the same definitions that prevailed in other portions of the statute, and requiring that agencies obtain orders to collect information on individuals believed to be foreign powers or agents of a foreign power. Congress later deliberately inserted “relevant” into the statute to ensure the continued specificity of targeted investigations.

In addition, Congress empowered the FISC to consider each instance of placing an electronic wiretap. The NSA’s program, in contrast, delegates such oversight to the executive, leaving all further inquiries of the databases to the agency involved. Once the NSA collects the telephony metadata, it is the NSA (and not the FISC) that decides which queries to use, and which individuals to target within the database.

This change means that the FISC is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy. Instead, it leaves the determination of whom to target to the agency’s discretion.

When you basically have the people who were responsible for the various laws that the NSA is now relying on arguing in court that the NSA is clearly going beyond the intent of the laws, it seems rather clear that the NSA’s case is on very thin ice.

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Comments on “Author Of Patriot Act As Well As Members Of Church Commission Tell Court NSA Has Gone Too Far”

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Anonymous Coward says:

Why we fail as a nation and electorate

We focus too much on what the legislation is “intended” to allow them to do, instead of focusing on how legislation is about to be used/appropriated for “other” purposes… or “features” as Microsoft might put it. Our entire society has been operating with complete disregard for “unintended consequences” lately.

Zakida Paul (profile) says:

Re: Why we fail as a nation and electorate

That’s not unique to the US. The problem is the mainstream media, they focus so hard on what a piece of legislation is intended to do and ignore what it will actually do. With unbalanced coverage in mainstream media, what chance does the population have?

From what I have seen, it takes media outlets on the fringes to give us a truly balanced approach.

Anonymous Coward says:

Re: Re: Why we fail as a nation and electorate

“they focus so hard on what a piece of legislation is intended to do and ignore what it will actually do.”

Why is it so hard to write a bill that says exactly what it is intended to do. I mean why write a bill that is “intended” to do something when it actually does something completely different?!

To me it sounds like the bill authors are either trying to pull a fast one on the public or they just plain can’t write what they mean.

Andy (profile) says:

Re: Re: Re: Why we fail as a nation and electorate

This is a common problem with writing legislation. It takes a huge amount of effort (and time) to write laws that specifically include only the elements intended and specifically exclude everything else. Governments rarely take the time to do it right which is why the courts are left to interpret the law. This of course introduces risk at every stage and leaves some extremely unsatisfactory laws on the books. The best we can hope for is that case law sets appropriate precedent to refine the interpretation, but as we see time and again, this often works against the people rather than in their favour.

That One Guy (profile) says:

Re: Re: Re:2 Why we fail as a nation and electorate

In some cases yes, in others no.

For example I remember when SOPA was being discussed there were a number of issues that the backers of the bill repeatedly claimed would never be abused, but at the same time they vehemently opposed any inclusions to the bill that would clearly and concisely prohibit those same actions, so in that case it was pretty obvious that they were trying to pull a fast one, rather than being unintentionally vague.

Anonymous Coward says:

Re: Why we fail as a nation and electorate

Now can we all admit, since the NSA was clearly violating not just the law, but the will of Congress and the framers of the law, that Edward Snowden – far from being a traitor – was in fact a patriot who exposed (in the only way possible) a criminal organization (the NSA) as well as saving the country from further violations of the constitution?

Anonymous Coward says:

I’m sure the ‘Five Eyes’ coalition (United States NSA, United Kingdoms GCHQ, New Zealand GCSB, Australian DSD, and Canadian CSEC) will simply outsource their Unconstitutional data mining operations to each other.

This allows a loophole for them to continue Unconstitutionally spying on their own citizens, who are the ones funding these spy programs.

The Five Eyes coalition can simply share domestic intelligence with each other, and have the Canadians data mine US citizen’s information. While the US data mines Canadian information.

Thus, each country can side-step each others regional laws. US funding the UK’s GCHQ spy operations has already been disclosed. We must conclude that this plan has already been put into place, and is fully operational.

Josh in CharlotteNC (profile) says:

Re: Re:

The Five Eyes coalition can simply share domestic intelligence with each other, and have the Canadians data mine US citizen’s information. While the US data mines Canadian information.

Sure, they can do that. But in order to datamine, they need a continuing source of the data. How would the Canadian/UK/Aus/NZ government force a US phone or Internet company to install monitoring systems within networks in the US?

out_of_the_fail_zone says:

Mikey, you pimple faced pirate freak with a furry fascination. You fail again in taking down this legitimate business and not attacking our elected officials at Google!

If you would pull your size challenged garden snake out of that rabbit for a moment, you sick psychopath, and look at the hard facts that Google is the real problem and Bing is our savior you’d stop wasting everyone’s time with your milk fetish!

Anonymous Coward says:

i hope it is also discussed here how the FISA and FISC parts have in no way done what they should have either. to me, as wrong as what has been happening is, there has been the opportunities to stop or at least limit what has gone on. those responsible for the oversight haven’t done a damn thing including their jobs! like so many in privileged positions, they just take the money and disappear if possible when shit hits fan!!

Anonymous Coward says:

To say they over stepped the bounds of what was to be ‘allowed’ is no news to anyone that has been following all this. Sen. Udall made very plain that the American public would be teed when it found out and it has. Trouble is what has been exposed has to come with the realization that not all has been revealed at all. It’s been made very plain to us that some of this won’t be revealed so we still don’t know it all and can only assume that because everyone that supports all this spying is constantly lying about it, it must be really bad.

After all every time someone gets up to defend this crap, they say oh, we don’t do xxx, which is supposed to be a really bad thing to do, only to find out days later, yeah they do.

Everyone now gets this spying domestically needs shut down. But because all these other nations are in on it, it has to be done in such a manner we don’t just shift off spying to other nations to do for us. This whole thing stinks.

This was the only reason Obama was saying maybe it needed tightening up a little. Because congress is coming back and they’ve heard an ear full for those few that would hold townhouse meetings. He knows it won’t continue to float. But I recall Obama saying he would welcome the debate over all this and he hasn’t held one to date. He had no interest beyond getting out of the hot water of the moment.

This spying domestically has to end.

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