Senators call for end to Justice Department's 'secret law'

Obama administration's secret interpretation of the Patriot Act allows it to vacuum up records on all Americans' phone calls. But an earlier effort to fix the law in December failed.

Sen. Ron Wyden has been saying for years that "the American people would be absolutely stunned" if they knew what kind of surveillance has been authorized by the Obama administration's secret Patriot Act interpretation

Obama administration's secret interpretation of the Patriot Act allows it to vacuum up records on all Americans' phone calls. But an earlier effort to fix the law in December failed.

Eight U.S. senators today seized on leaks from the National Security Agency to call for an end to a "secret law" that governs how intelligence agencies electronically spy on Americans.

Secret laws may seem like Kafkaesque jurisprudence borrowed from Soviet Russia, but last week's leak of a secret court order revealed the Obama administration has a secret interpretation of the Patriot Act that allows it to vacuum up logs of all domestic phone calls on a daily basis.

"It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy," Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence committee, said in a statement. "When talking about the laws governing intelligence operations, the process has little to no transparency." Sen. Patrick Leahy, the head of the Judiciary committee, also signed on to today's request.

Wyden, along with senators Mark Udall (D-Colo.) and Rand Paul (R-Ky.), have warned for years of the problems with secret interpretations of the Patriot Act. A CNET article from 2011 quoted him as saying at the time: "I believe that the American people would be absolutely stunned" if they knew what was actually going on.

The secret order from U.S. District Judge Roger Vinson, who serves on the secret Foreign Intelligence Surveillance Court, wasdisclosed last week by the Guardian newspaper.

Vinson's order relies on Section 215 of the Patriot Act, 50 USC 1861, better known as the "business records" portion. It allows FBI agents to obtain any "tangible thing," including "books, records, papers, documents, and other items," a broad term that includes dumps from private-sector computer databases with limited judicial oversight -- and not what politicians ever envisioned when enacting the Patriot Act in October 2001.

The eight senators are trying again to enact legislation that would, in general, require decisions of the Foreign Intelligence Surveillance Court to be revealed to the public. It has loopholes, however, including allowing the attorney general to make a "determination that a decision may not be declassified" because of national security reasons.

It was offered -- unsuccessfully -- as an amendment in December 2012 during a debate over renewing the Foreign Intelligence Surveillance Act. The renewal, without the amendment attached, was approved by a vote of 73 to 23.

Separately, Google today asked Attorney General Eric Holder to lift a legal gag order that has prevented the company from revealing what information it's legally required to disclose to the feds.

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NSA swept up thousands of U.S. e-mails as part of illegal program, ruling reveals

Newly released 2011 ruling by Foreign Intelligence Surveillance Court found NSA e-mail and data-collection program illegal and decried government's "substantial misrepresentation" of scope of NSA activities

Declan McCullagh

The U.S. government has released a secret court ruling from 2011 that found some surveillance conducted by the National Security Agency illegal and that estimated the NSA collected many thousands of "wholly domestic communications" between Americans.

The Electronic Frontier Foundation heralded as a "victory" Wednesday's release of the 86-page opinion by the Foreign Intelligence Surveillance Court (FISC), set up under the 1978 Foreign Intelligence Surveillance Act.

In a statement following the release of the court opinion, Director for National Intelligence James Clapper announced the establishment of a group that will review the United States' surveillance capabilities and issue a report by mid-December.

The group will assess "whether the U.S. employs its technical collection capabilities in a manner that optimally protects our national security...while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust."

The court document, dated October 3, 2011, found some of the NSA's collections to be in breach of the Fourth Amendment, which protects against unreasonable searches and seizures.

It's not the first time the opinion has been released -- it was published in January, but the document was so heavily redacted it was impossible to read, bar a single sentence that offered nothing of value.

In the readable (albeit still heavily redacted) opinion, the court said it was "troubled" that government revelations had, for the third time in less than three years, uncovered a "substantial misrepresentation" of the scope of NSA data-collection programs involving Internet traffic.

The now-discontinued "upstream" program diverted large quantities of international data from fiber cables running in and out of the U.S. into a data center, where it could be stored and analyzed. 

Investigative reporting by ZDNet in June first detailed how fiber and telecommunications companies were ordered under law to allow vast amounts of data belonging to U.S. citizens and foreign nationals to be wiretapped. 

Realistically, the NSA was unable to filter out the communications of Americans speaking to other Americans.

According to NSA estimates, as many as 56,000 "wholly domestic communications" may have been acquired, and are being acquired, by the government agency per year.

The NSA acquires more than 250 million Internet communications each year under Section 702 of FISA, the document states. Most are obtained from Internet providers. The court opinion also says the NSA's upstream program constitutes only approximately 9 percent of the total Internet communications being acquired under Section 702.

On Tuesday, a report by The Wall Street Journal claimed the NSA could access as much as 75 percent of all U.S. Internet traffic.

"The exceptions to minimization requirements mean information gathered on Americans could be used in ordinary criminal investigations, according to rules approved" by the FISC, the Journal wrote.

One month after the FISC ruled the upstream program unconstitutional, the NSA adjusted its collection process to filter out wholly American traffic from international traffic. It also purged any domestic traffic that it received. 

"Contrary to the government's repeated assurances, [the] NSA had been routinely running [search] queries of the metadata using querying terms that did not meet the required standard for querying," the FISC opinion said.

The court concluded that this requirement had been "so frequently and systematically violated that it can fairly be said that this critical element of the overall [...] regime has never functioned effectively."

In a joint statement (PDF) issued late Wednesday, the NSA and the Office of the Director of National Intelligence said media reports based on the Journal's article "provide an inaccurate and misleading picture of NSA's collection programs."

"Press reports based on an article published in today's Wall Street Journal mischaracterize aspects of NSA's data collection activities conducted under Section 702 of the Foreign Intelligence Surveillance Act," the statement read. "The NSA does not sift through and have unfettered access to 75 percent of the United States' online communications."

Update, 10 p.m. PT: Adds statement from NSA about Wall Street Journal article.

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