Section Of Patriot Act Allowing NSA Program Is Use To Debate

Jun 6, 2013
Originally published on June 10, 2013 5:38 pm
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The order from the FISA court is based on a section of the Patriot Act, Section 215. It allows security officials to pursue, quote, "any tangible things" that could be relevant to a national security investigation. Joining us to explain more about this section of the law and its history is Jeffrey Rosen, professor of law at the George Washington University and president of the National Constitution Center in Philadelphia. Welcome back to the program.

JEFFREY ROSEN: Good to be here.

CORNISH: So start by giving us a brief explanation of what powers Section 215 gives the government under the Patriot Act.

ROSEN: 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.

CORNISH: So does the government really have to explain to the FISA court why they're asking for the information? It's not clear from the order that was made public.

ROSEN: The government has to provide some argument about relevancy, but it seems that the Obama administration may have made the rather adventurous argument that any data or phone logs are potentially relevant because if scanned algorithmically, they might reveal patterns that could lead to terrorism. If that, in fact, is the argument - and we can't tell that from court order - that would essentially eliminate the relevancy requirement and authorize general fishing expeditions.

CORNISH: Now, you called it sort of an adventurous argument and this sort of goes to the point brought up by Senators Mark Udall and Ron Wyden. Back in 2011, they wrote a letter to the Justice Department and in it, they said, and I'm quoting here, "We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act," referring to FISA court opinions.

"And as we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows." So what gives here? I mean, are there - it seems like there's clearly different views on how broadly the statute should be interpreted.

ROSEN: There are, indeed. And these latest revelations dramatically vindicate the Senators' fears.

CORNISH: You know, Jeffrey Rosen, we heard Senator Dianne Feinstein say that this data gathering we're talking about today is basically run-of-the-mill. She calls this a three-month renewal of something that's been going on for seven years. As a reporter, Dina explained this is not illegal. And Congress has renewed the Patriot Act. More than once, they've looked at this provision. So what's going on with lawmakers here?

ROSEN: There's no question that it's controversial. People can disagree about whether or not this program is or is not consistent with Section 215, but there's no question that it's a far broader accumulation of data than anyone had previously thought that the government was engaging in. And that's why I think the reauthorization debate, when it comes up the next time, may be a little more contested than Senator Feinstein's comments suggest.

CORNISH: Looking back to when the Patriot Act was first passed, around 2001, a lot has changed, obviously, when it comes to technology. And are we looking at a situation where essentially we have a law that already is feeling a little bit outdated?

ROSEN: Well, I think it is. Remember, when Section 215 was passed, the big controversy was about libraries and book store records. And the librarians of America were rightly outraged that their patrons' browsing records might be exposed. Although those were very legitimate concerns, I think even those librarians could never have imagined that what would be seized in the future are telephone logs of every single phone call - domestic, international and even local - let alone the billions of pieces of content that are posted to Facebook and Google and Twitter and the internet every day.

So I think it's certainly time to reexamine the Patriot Act in light of new technology.

CORNISH: Jeffrey Rosin, thank you so much for speaking with us.

ROSEN: Thank you.

CORNISH: Jeffrey Rosen is professor of law at the George Washington University and president of the National Constitution Center in Philadelphia. Transcript provided by NPR, Copyright NPR.