During a recent House Judiciary Committee hearing concerning oversight, Rep. Zoe Lofgren decided to quiz Attorney General Eric Holder about the federal government's surveillance efforts, starting off with a rather simple question. She notes that the bulk phone record collection program is considered to be legal by its supporters, based on Section 215 of the Patriot Act, which allows for the collection of "business records." So, she wonders, is there any legal distinction between phone records and, say, internet searches or emails
? In other words, does the DOJ believe that it would be perfectly legal for the US government to scoop up all your search records and emails without a warrant? Holder clearly does not want to answer the question, and first tries to answer a different question, concerning the bulk phone records program, and how the administration is supposedly committed to ending it. But eventually he's forced to admit that there's no legal distinction:
This is important. As you may recall, some of the attempts to deal with the phone record collection, including President Obama's, focus only on ending the specific phone record collection program
, not the underlying law (or the interpretation of that law). This isn't to say that there are ongoing programs to do bulk warrantless collection of those other types of information, but it is
worth recognizing that the government believes there would be no Constitutional issue if it decided to set up such a program.
All along, this has been the problem with Section 215. When it first was discussed, it was often called the "library" provision, as the example that people talked about was using Section 215 to collect the records of what books someone checked out of the library. However, as the phone collection program showed, it's been turned into something much, much broader
. Fixing this interpretation is going to take a lot more than just ending one program. It requires changing what is allowed by Section 215.