Reminder: When Ron Wyden Says There's A Secret Interpretation Of A Law, Everyone Should Pay Attention

Privacy

from the how-many-times-do-we-need-to-do-this dept

Years before Ed Snowden revealed how the NSA and DOJ had reinterpreted the PATRIOT Act and the FISA Amendments Act to allow the intelligence community to spy on Americans, Senator Ron Wyden tried to warn the public that this had happened:

We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.

For a couple of years after he said that, privacy and civil liberties advocates were forced into something of a guessing game to figure out what that secret law actually said. Eventually, the details were spilled by Ed Snowden who is, of course, now being threatened with a lifetime in prison for blowing the whistle.

This is not the only time that Wyden has made these kinds of warnings, and he’s doing it again right now — this time over CISA, the faux-“cybersecurity” bill that Wyden has made clear is really about surveillance. Recently released papers from the Snowden archives have made it clear why he’s saying this, because it showed that, contrary to what’s been said in the past, the NSA is using “cyber signatures” to sniff through upstream collections (their taps into the fiber backbone) under Section 702 of the FISA Amendments Act. And this opens up the information collected to so-called “back door” or “incidental” searches by the NSA. The whole point of CISA is to actually encourage companies to give the government more such “cyber signatures” which they can use to monitor the internet.

However, there’s likely more going on as well, and in particular, Senator Wyden has been strongly hinting about an important Justice Department memo that remains classified, but which he implies would change the debate.

Wyden… claims that a classified Justice Department legal opinion written during the early years of the George W. Bush administration is pertinent to the upper chamber’s consideration of cyberlegislation?a warning that reminds close observers of his allusions to the National Security Agency’s surveillance powers years before they were exposed publicly by Edward Snowden.

[….] “I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public,” Wyden said in his written dissent against CISA, which cleared the Senate Intelligence Committee 14-1 in March. “This opinion, which interprets common commercial service agreements, is inconsistent with the public’s understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch.”

Last year, based on some breadcrumbs that Wyden dropped during the confirmation hearings for Caroline Krass as the CIA’s new top lawyer, Marcey Wheeler dug into some more details about this document, and notes that it comes from the same period of time when the Bush administration was twisting itself into knots to justify warrantless wiretapping and torture. In other words, this document seems ridiculously relevant to the debate.

And while it appears that the vote on CISA has likely been delayed yet again, it seems like this is a fairly important detail.

In short, haven’t we, as a country, learned enough to note that, when Senator Wyden points out that there’s a secret interpretation of the law that is at odds with a plain reading of it, we should all be demanding answers?

Filed Under: cisa, cybersecurity, doj, information sharing, ron wyden, secret law, surveillance