The following post by Cindy Cohn & Trevor Timm was originally published on Electronic Frontier Foundation’s  blog Deeplinks, on May 20, 2013.

Are you frustrated by the ongoing assault on your liberties?

To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.

Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c’mon—it’s about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It’s just too bad that something like the Department of Justice’s subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.

But, better late than never. Shock is reverberating through the halls of Congress, particularly in yesterday’s Justice Department oversight hearing in the House Judicary Committee, where Attorney General Eric Holder denied knowledge of (and culpabality in) the AP leak investigation. Some of the outcry is policital, for sure, with Republicans jumping on the opportunity to pair AP subpoena revelations with news of the IRS targeting conservative groups and new information related to the Benghazi attack. We’ll stow our cynicism for now and embrace the outrage where we find it, especially if it results in the passage of the newly introducedTelephone Records Protection Act.

So how much outrage is there? We used the Sunlight Foundation’s handy tool, Scout, to search Congressional speeches to measure the snowballing fury at the DOJ among members of Congress. Here are some of the highlights.

Rep. Ted Poe (R-TX) in a floor speech titled “State Secrets vs. Freedom of the Press”:

Mr. Speaker, when I went to the Soviet Union in the 1980s, the Communist leaders told me that they believed in and had a free press and they also had free speech. However, I also learned that Soviet law prohibited these freedoms when they jeopardized state secrets–or national security, as we call it in America. The state-secret provision was so broad the Soviet press and speech were gagged and shackled. They certainly were not free.

Now we learn that our Department of Justice improperly seized without notice phone records of over 100 Associated Press journalists–all in the name of national security concerns.

To me, this is a clear violation of the spirit and letter of the First Amendment. These actions border on the Soviet method of legalizing these freedoms but never allowing them. So it’s time to revisit U.S. law and require in all cases judicial review where these types of records are seized.

We cannot allow our government to arbitrarily abolish the First Amendment in the name of “state secrets.”

Sen. Marco Rubio (R-FL):

Then the revelation on Monday that the Justice Department of the United States–think about that, the chief law enforcement agency of the country–had issued this blanket search of the phone records of I think the Nation’s largest reporting group, the Associated Press. I understand if they were going after a leak that endangered America and security; that is one thing. We can have a debate about that. But they went much further than that. It was a blanket request of all of these phone calls, including the switchboard. Pretty outrageous.

…For example, you think about some of our most precious freedoms–the First Amendment right to free speech. Think about if you are a reporter at the Associated Press. Think about if you are a source–unrelated to national security–to the Associated Press. Think about if you
are a whistleblower, someone who is blowing the whistle on government activity because you work in the government and you think what the government is doing is wrong. Think about that for a second.

Now, all of a sudden, what are you afraid of? I am not calling that reporter back because their phone might be tapped, my number might show up on their records, because the Justice Department has just shown they are willing to do that. Think about the chilling effect that sends up and down the government.

If there is wrongdoing somewhere in the government right now, people are probably afraid to blow the whistle because they are afraid they are being surveilled by the Justice Department or that the person they are talking to is being surveilled. That is how outrageous this is.

Rep. Virginia Foxx (R-NC):

The administration’s apologists are in a panic. They claim the President is not responsible for any of this wrongdoing. The President, who made a career touting government as the solution to most every problem, now solicits our understanding. It seems the leviathan is rather unwieldy and difficult to manage.

This is my shocked face.

Rep. Jeff Fortenberry (R-NE):

[W]e are learning that the Department of Justice seized phone records of Associated Press reporters, including records of their personal phone lines. Now, the ability to wiretap and probe needs to be in place in narrow circumstances, but the wide-ranging nature of what happened raises a number of questions, questions that beg us to ask: How do we protect the freedom of the press?

Rep. Jim Himes (D-CT) in a floor speech titled “Freedom of the Press”:

Mr. Speaker, it is the fashion amongst many of us to blame the press for our troubles, and that’s, of course, because the press reports our troubles. At their best, the media keeps us honest, it keeps us in our constitutional lanes, and it reports our failures. It is essential for democracy. There is a reason why freedom of the press is not the Second or Fourth or 10th Amendment. It’s the First Amendment.So, Mr. Speaker, I am profoundly concerned over the Department of Justice’s overbroad and chilling behavior with respect to the Associated Press. Seeking records for 20 phone lines, giving the AP no notice, refusing at this point to discuss their behavior feels to me like overreach.Mr. Speaker, it’s time for the Department of Justice to stand back. You can imagine that there is somebody out there today who has a failure to report who is chilled and says, I will not do that because of the approach that the Department of Justice has taken.Mr. Speaker, I am proud to serve in the very core of democracy, but this Chamber rests on foundations, and a key part of that foundation is a free and competent press.

Rep. Morgan Griffith (R-VA):

Well, we once had a political party known as the Know-Nothings. We now have a President who wants us to believe that he knows nothing…He wants us to believe that he knows nothing about the Department of Justice subpoenaing 2 months of the Associated Press’ phone records.

What has happened to the days in America when Democratic President Harry Truman proudly placed a placard on his desk that said: “The buck stops here”? Perhaps, sadly, we have returned to the days where the question to the President of the United States ought to be: What did you know and when did you know it?

Sen. Deb Fischer (R-NE):

Just yesterday we learned of another breach of public trust and another potential violation of our First Amendment freedom–the freedom of the press. Press reports indicate the Department of Justice secretly obtained extensive telephone records of reporters and editors for the Associated Press in what the head of the news organization called a “massive and unprecedented intrusion” into how news organizations gather the news. According to the Associated Press’s legal counsel, the records obtained included those from reporters working out of the House of Representatives press gallery.

While it is unclear at this point how many reporters were targeted and why, the effect of this data gathering is clear: intimidation of the press and suppression of free speech.

This is unacceptable. A free and unfettered press is vital to any democracy. Moreover, the scope of this information gathering is simply beyond the pale–and likely beyond precedent.

Update: Rep. Hank Johnson asked us to include some of the remarks he prepared for the judiciary hearing.

Rep. Hank Johnson (D-GA):

I strongly believe that Congress must protect the free flow of information and ideas under the First Amendment. This is why I voted for the Free Flow of information Act, a federal shield law that would have required judicial oversight over media subpoenas.  This vital legislation, which was blocked by Republicans in the Senate and opposed by some of the same Members of the Committee who are shocked by the AP investigation, would likely have avoided much of the alarm caused by this investigation.

Protecting the freedom of the press also requires that we strike a careful balance in preventing national security leaks where there is a very real threat to American lives.  As a member of the Armed Services Committee, I am acutely aware of the threats that face our Nation and the need for confidentiality when confronting these threats.

The public outcry in response to the AP investigation also illustrates the public’s alarm with the lack of privacy protections for our everyday communications.  Every day, the phone records of countless Americans are subject to criminal investigations without a warrant based on probable cause.  Investigators need only a subpoena to obtain the numbers you call and receive, as well as emails and text messages that are more than 180 days old.  Warrantless surveillance brings us ever-closer to the surveillance state described by George Orwell where “every sound you made was overheard,—and, except in darkness, every moment scrutinized.”

This issue demonstrates the urgent necessity to modernize laws that have been outpaced by technology and the ease of collecting massive amounts information about Americans.  We need to modernize the Electronic Communications Privacy Act of 1986 by requiring a warrant for surveillance involving communications, phone records, and movements.  We need to update the Espionage Act of 1917 to limit prosecutions to cases involving real harms to our national security.

The FBI’s annual report on its use of spying powers released late last month reveals a meteoric 900% rise in the use of Section 215 of the PATRIOT Act under the Obama Administration (see graphic). This provision, reauthorized in 2011, allows the FBI to force unwilling businesses to hand over “any tangible things” simply upon showing the closed-door Foreign Intelligence Surveillance Courts (FISA court) that they are “relevant” to an “authorized investigation” into “international terrorism or clandestine intelligence activities.” In a break with foundational Fourth Amendment principles, the person whose “tangible things” are sought need not be suspected of any criminal activity themselves. The FBI merely must show the FISA court that those “things” sought are “relevant” to an investigation into international terrorism.

So just how broad is this power?

A few courageous senators in the know have hinted that Americans would be “stunned” by the scope of the spy powers claimed under Section 215; the only problem is the government has kept this interpretation secret. Not only does this lack of transparency prevent public discourse on what the limits of the government’s powers should be, it also drips with irony under a president that denounced such broad powers as a “fishing expedition” while in the Senate.

There seem to be two candidates under which the Obama administration could argue for expansive powers under Section 215. A broader definition of either “relevant” or of “tangible things” would balloon the government’s surveillance powers claimed under this law. The former would allow searches and seizures for information more and more tenuously related to international terrorism while the latter potentially could expand covered “things” to include email, Internet browsing history, and cell phone records (none of which were included explicitly in the statute).

In 2011, the American Civil Liberties Union sued to obtain the government’s secret interpretation of Section 215. In the ensuing two years of legal battles over this issue, even more troubling information has come to light that suggests the government indiscriminately intercepts all of our emails, bypassing the very judicial oversight supposedly set up to protect our privacy. Whether this is made possible by compliant telecom companies that were retroactively immunized for their abuses and now given secret authorization for breaking wiretapping laws or by covert spying unknown to the telecoms doesn’t matter; neither of these sources of surveillance would show up in the FBI’s annual report. Consent searches would obviate the need for a court order while working outside the law conveniently avoids the reporting requirement.

Further clouding true transparency, the FBI does not have to reveal how many people’s information was searched or seized under a Section 215 order. Could this be another source of the “stunning” breadth of power? Could each of the 212 applications sought by the FBI in essence be asking companies for all of their tangible records rather than representing an application to focus on any one person?

Four things would aid the public in determining how much actual (versus reported) surveillance is conducted:

• Meaningful transparency from “the most transparent administration in history”
• More fearless whistleblowers stepping forward to shed the light on this issue that our executive and judiciary have refused to
• More than decorative judicial oversight scrutinizing claims that the secret interpretations of Section 215 should be kept from public view (granted, this would not address extrajudicial surveillance)
• An end to secret interpretations of laws in general (also would not address extrajudicial surveillance)

So far, none of these things has happened. Sadly, maybe that’s the point.

5/16, Josh Peterson, The Daily Caller, DOJ sought to surveil several thousand U.S. citizens in 2012

5/16, Alina Selyukh and Deborah Charles, NBC News, CISPA cybersecurity bill backers hope second time’s a charm

5/16, Charlie Savage, New York Times, Debating the Legal Basis for the War on Terror

5/16, Somini Sengupta, New York Times, Concerns Arise on U.S. Effort to Allow Internet ‘Wiretaps’

5/16, Brad Knickerbocker, Christian Science Monitor, US loses track of terrorists in witness protection: Poor data sharing blamed

5/15, Matthew Alexander, MSNBC, New WikiLeaks film discusses government secrecy

Obama said he made “no apologies” for being concerned about national security but that the free flow of information was important to him as well.

What exactly is this “free flow” of information? According to The Guardian blogger Glenn Greenwald:

If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation’s most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

This mind set is obviously not very conducive to a “free flow” of information. So apparently, President Obama’s “free flow” of information is only pertaining to that information which benefits his administration:

The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don’t approve and/or which don’t glorify the president.

Interestingly,  the media is suddenly up in arms about this abuse by the Obama administration. This passage from the Washington Post had Greenwald laughing audibly:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

Greenwald’s response?

You don’t say! The Washington Post’s breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama’s civil liberties record at a progressive conference, put it this way: “I’m disgusted with this
president.” In the spirit of optimism, one can adopt a “better-late-than-never” outlook regarding this newfound media awakening.

The news media should take a several steps back from its cozy relationship inside the Beltway and return to its adversarial position as a watchdog of government. We, the people, need the media on our side, not the side of the politically elite.