Surveillance, secret interpretations, and secret authorizations: the story of Section 215 of the PATRIOT ActSaturday, May 18, 2013 at 10:04 am by Dave Mitchell
When one power is constrained (or simply not broad enough), interpret other powers to be unrealistically and shockingly expansive and shield that interpretation from public scrutiny…at least that’s what the FBI would tell you.
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.