A year before most of us knew that the National Security Agency was routinely collecting our phone records, Ron Wyden warned that the Obama administration would regret keeping us in the dark. "When the American people find out how their government has secretly interpreted the PATRIOT Act," the Oregon Democrat said on the Senate floor in May 2011, "they will be stunned and they will be angry."
As a member of the Senate Intelligence Committee, Wyden knew about the NSA's phone record dragnet, but most of his colleagues did not. The outrage he predicted therefore was not limited to the general public; legislators were also stunned and angry, as reflected in the privacy protection bill that two House committees unanimously approved last week. By exceeding the powers that Congress thought it had granted, the Obama administration seems to have assured passage of the most significant surveillance reforms since the PATRIOT Act was approved in 2001.
The secret interpretation to which Wyden alluded involved Section 215 of the PATRIOT Act, which authorizes court orders demanding records that are "relevant" to a terrorism investigation. The Obama administration, with the blessing of the secret court created by the Foreign Intelligence Surveillance Act (FISA), read "relevant" broadly enough to encompass any collection of data that might contain information about terrorists.
As Rep. James Sensenbrenner, R-Wis., the PATRIOT Act's chief author, explained last week, "The government has misapplied the law. ... In a feat of legal and verbal gymnastics, the administration convinced the FISA court that because some records in the universe of every phone call Americans make or receive are relevant to counterterrorism, the entire universe of those calls must be relevant."
Sensenbrenner's USA FREEDOM Act, which the House is expected to approve this month, rejects that reading of the law. The bill would prohibit the mass collection of telephone metadata -- information about who talked to whom, when and for how long. Instead the government would have to seek the records of specific targets from phone companies, using court orders based on "reasonable suspicion" that the targets are involved in terrorism.
The same restrictions would apply to other kinds of data held by third parties, including information about purchases, reading habits, research interests, and medical, legal and financial matters. According to the Supreme Court, the Fourth Amendment does not apply to such records, which receive only as much protection as Congress decides to give them.