During the winter of 2006, the U.S. Senate was debating the re-authorization of the Patriot Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians, led by then-Senator Russ Feingold, tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans and warned about the likelihood of executive branch "fishing expeditions."
Dismissive Senate colleagues scoffed at their concerns.
An exchange between Feingold and then-Senator Jon Kyl is illustrative of the way civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.
The scene takes place on the Senate floor on February 16, 2006. Feingold was trying to amend the Patriot Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government "extremely broad powers to secretly obtain people's business records." Said Feingold (emphases mine throughout):
The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records.
But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report -- "relevance" -- will still allow government fishing expeditions. That is unacceptable.
He went on:
Next, let me turn to judicial review of these Section 215 orders. After all, if we're going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.
Today we know that the government has invoked Section 215 to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: The sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, "relevance," turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult but impossible to get meaningful judicial review.