At least some of the broad data collection by the National Security Agency, revealed in various reports over the past two days, was authorized under a controversial part of the USA PATRIOT Act—section 215.
The court order demanding telephone data—though not call contents—from Verizon, published on Wednesday by The Guardian newspaper, rested on that roughly 550-word provision. It's unclear whether the newly reported collection of "audio and video chats, photographs, e-mails, documents, and connection logs," from at least nine major internet companies rests on the same authorization, though the practice appears similar in design to the Verizon snooping.
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Section 215 has been the subject of criticism for years, with some senators and several privacy groups expressing concern about the government's broad interpretation of what it allows. It authorizes the government to order businesses to turn over "the production of any tangible things (including books, records, papers, documents, and other items)," provided a secret court approves and deems the data relevant to a national security investigation. In a report last year, the Congressional Research Service summed Section 215 up succinctly: "It both enlarged the scope of materials that may be sought and lowered the standard for a court to issue an order compelling their production."
National Constitution Center President and George Washington University law professor Jeffrey Rosen explained its history to NPR:
Section 215 was an expansion of the Foreign Intelligence Surveillance Act, which was originally passed in 1978. That act gave the government the ability to issue secret warrants for specified items, like records from car rental companies or storage facilities, on the approval of a secret court if that was relevant to a terrorism investigation and if the suspect was a suspected spy or terrorist.
Section 215 dramatically broadened the scope of that power. Now the government can seize, as you said, any tangible thing. In addition, 215 removed the limitation that it had to be a suspected spy or terrorist whose records were being sought. Now, anyone's records can be sought. The only limitation is that the secret warrant has to be relevant to a national security investigation.
In seeking such broad swaths of data, the Obama administration appears to have made a "rather adventurous argument," Rosen said.
Several senators, including Sens. Ron Wyden, Mark Udall, and Bernie Sanders have argued that Section 215 deserves further scrutiny—as have a handful of high-profile privacy groups, including the American Civil Liberties Union, Electronic Frontier Foundation, and American Library Association. Critics have long sought to refine the scope of Section 215, according to today's triple-bylined, 10-contributor story in The New York Times:
Section 215 is among the sections of the PATRIOT Act that have periodically come up for renewal. Since around 2009, a handful of Democratic senators briefed on the program — including Ron Wyden of Oregon — have sought to tighten that standard to require a specific nexus to terrorism before someone's records could be obtained, while warning that the statute was being interpreted in an alarming way that they could not detail because it was classified.
On Thursday, Mr. Wyden confirmed that the program is what he and others have been expressing concern about. He said he hoped the disclosure would "force a real debate" about whether such "sweeping, dragnet surveillance" should be permitted — or is even effective.
The ACLU has argued that Section 215 violates Fourth Amendment protections by allowing the government to conduct searches without warrants or probable cause. The NSA scandal represents a "complete disregard for our Bill of Rights," Sen. Rand Paul said on Twitter on Thursday night.
This article is from the archive of our partner The Wire.
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