The
Electronic Frontier Foundation (EFF) has filed an amicus brief on behalf of
Rep. Jim Sensenbrenner (R-WI)
against the National Security Agency (NSA). Sensenbrenner is the author
of the original Patriot Act The case against the NSA was initiated by
the ACLU.
According to Sensenbrenner, it was never the intent of
Congress for the Patriot Act to be used as a tool through which the NSA
could collect the records of any telephone call made to, from and within
the United States. In the brief, Sensenbrenner appeals to the court to
deny the NSA’s motion to dismiss. He is also asking that the court grant
the ACLU’s motion for a preliminary injunction, which would halt the
program pending the court’s decision.
When it was first learned that the NSA was using
Section 215 of the
Patriot Act to obtain data,
the ACLU filed a lawsuit. Following that, a group of lawmakers,
led by Sensenbrenner, came out in opposition to the NSA’s practices as far surpassing the surveillance authority granted by Congress.
Sensenbrenner
has said: “I stand by the Patriot Act and support the specific
targeting of terrorists by our government, but the proper balance has
not been struck between civil rights and American security.”
Sensenbrenner, who chaired the House Judiciary Committee during the
Patriot Act debates, also remarked that a “large, intrusive
government, however benevolent it claims to be, is not immune from the
simple truth that centralized power threatens liberty. Americans are
increasingly wary that Washington is violating the privacy rights
guaranteed to us by the Fourth Amendment.”
Additionally,
Sensenbrenner sent a
letter to Attorney General Eric Holder regarding the NSA’s bulk collection of data and the Obama administration’s misinterpretation of
Section 215 of the
Patriot Act.
At issue is the fact that an FBI training manual
specifically lists gun sales as records the FBI can access under
Section 215, the so-called business records provision. According to
Sensenbrenner:
“The
flawed logic the Obama administration relied on to support bulk
collection of Americans’ phone data would also support bulk collection
of other personal data. Does the administration believe it has the
authority to indiscriminately collect records of firearms sales?
The FBI, for example, could conclude that
it is interested in firearms sales – not only in the type of firearms
being purchased, but also in who is selling firearms to whom – thereby
ascribing importance to the connections between the buyers and sellers.
These connections would make firearms sales indistinguishable from phone
records under the administration’s analysis.
The administration’s legal view of Section
215 could potentially support building a national gun registry despite
Congress’s expressed disapproval and the Second Amendment. This view is
beyond anything Congress ever intended and must be reined in.
In the
brief filed in federal court, by the NRA, it is argued that the National
Security Agency’s database of phone records amounts to a “national gun
registry: “It
would be absurd to think that the Congress would adopt and maintain a
web of statutes intended to protect against the creation of a national
gun registry, while simultaneously authorizing the FBI and the NSA to
gather records that could effectively create just such a registry.”
The
NSA has claimed that it only “queries” the database a limited number of
times for specific national security reasons and that Congress
authorized phone data surveillance with
Section 215 of the
Patriot Act, which allows for the collection of business records “relevant” to terrorism.
On August 9, the Obama administration released a previously secret legal interpretation of the
Patriot Act
that it used to defend the bulk collection of Americans’ phone records.
The dubious reasoning in the twenty-two page memo is, in Sensenbrenner’s
opinion, one of the strongest arguments for transparency in government
and he cites the late Supreme Court Justice Louis Brandeis who wrote
that, “sunlight is said to be the best of disinfectants.”
The NSA failed to report the privacy violations which represent a significant infringement of constitutional rights.
Sensenbrenner contends that beyond these blatant violations, the foundation of the programs is itself illegal:
“Section 215 of the Patriot Act
authorizes the collection of certain business records — in this case,
phone records — when there are reasonable grounds to believe that the
records are relevant to an authorized investigation into international
terrorism. The key legal term is ‘relevance’.
Under
this relevance standard, the administration has collected the details
of every call made by every American, even though the overwhelming
majority of these calls have nothing to do with terrorism. Since first
learning of the program this spring, I have been a vocal critic of such
dragnet collection as a gross invasion of privacy and a violation of
Section 215.
The
administration’s memo begins by acknowledging that its interpretation
of the statute is at odds with the plain meaning of ‘relevance’. It
argues there is a ‘particularized legal meaning’ of relevance, but it
ultimately concedes that it fails to meet this standard as well.”
Important to gun rights advocates, the NRA, In its filing, argues that the NSA’s database would
allow
the government to identify and track gun owners based on whether
they’ve called gun stores, shooting ranges or the NRA. “It would be
absurd to think that the Congress would adopt and maintain a web of
statutes intended to protect against the creation of a national gun
registry, while simultaneously authorizing the FBI and the NSA to gather
records that could effectively create just such a registry,” the NRA
wrote.
It
is pointed out that Congress would never have intended to authorize
such widespread surveillance since it had repeatedly rejected proposals
to create a national gun registry. The lawsuit also states that the
phone record program violates its members’ First Amendment rights to
associate and communicate freely because people may fear retribution for
associating with the NRA if they knew the government was monitoring its
phone records.
The
arguments to the contrary are far from compelling. The Obama
administration’s explanation is that all of our phone records are
broadly relevant because potential connections between the individual
data points are of value. So, it’s the needle in the haystack metaphor
again, which purports that the haystack is needed in order to find the
terrorism needle.
Sensenbrenner
writes: “But our private connections contained in the bulk data are
only of value if they in some way relate to terrorism. To the extent
they don’t, the government has no right to collect them. The government
may need the haystack to find the needle, but gathering the haystack
without knowledge that it contains the needle is precisely what the
relevance standard and
Section 215 are supposed to prevent.”
Although
the secret FISA court has gone along with this, historically no public
court has ever upheld document collection that is anywhere close to this
current level.
Sensenbrenner accuses the administration of misinterpreting the law and of ultimately
threatening Americans’ First, Second and Fourth Amendment rights.
“Congress never intended this. I will rein in the abuse of both the
Patriot Act and the US Constitution with the support of the American
public.”
