The Government’s PATRIOTic Databases on Innocent Americans

As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.


Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

  1. Gitcheegumee says:

    Source: The Guardian

    The personal data of millions of passengers who fly between the US and Europe, including credit card details, phone numbers and home addresses, may be stored by the US department of homeland security for 15 years, according to a draft agreement between Washington and Brussels leaked to the Guardian.

    The “restricted” draft, which emerged from negotiations between the US and EU, opens the way for passenger data provided to airlines on check-in to be analysed by US automated data-mining and profiling programmes in the name of fighting terrorism, crime and illegal migration. The Americans want to require airlines to supply passenger lists as near complete as possible 96 hours before takeoff, so names can be checked against terrorist and immigration watchlists.

    The agreement acknowledges that there will be occasions when people are delayed or prevented from flying because they are wrongly identified as a threat, and gives them the right to petition for judicial review in the US federal court. It also outlines procedures in the event of anticipated data losses or other unauthorised disclosure. The text includes provisions under which “sensitive personal data” – such as ethnic origin, political opinions, and details of health or sex life – can be used in exceptional circumstances where an individual’s life could be imperilled.

    The 15-year retention period is likely to prove highly controversial as it is three times the five years allowed for in the EU’s PNR (passenger name record) regime to cover flights into, out of and within Europe. A period of five and a half years has just been negotiated in a similar agreement with Australia. Germany and France raised concerns this week about the agreement and the unproven necessity for the measure.

    Read more:

  2. PeasantParty says:

    More insanity! I asked back then, and still today the same question.

    How are citizens supposed to follow the laws when the law is a secret?

    If a law cannot be made public then why do we need to follow an unknown, unknown-known? OMG! It gets as crazy as Rummy.

  3. speakingupnow says:

    “I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly.”

    I wonder how many congressional representatives have realized that information is collected and used on them. Based on the cloture vote, I would say, very few.

    • Surtt says:

      I wonder how many congressional representatives have realized that information is collected and used on them. Based on the cloture vote, I would say, very few.

      I a guessing the opposite, congressional representatives were made very aware of sensitive information collected on them, information they would not want to be made public…

  4. john in sacramento says:

    Todd Hinnen:

    Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

    Absolutely not true

    F.B.I., Using Patriot Act, Demands Library’s Records

    More here

  5. donbacon says:


    * Open Up Government to its Citizens: The Bush Administration has been one of the most secretive, closed administrations in American history. Our nation’s progress has been stifled by a system corrupted by millions of lobbying dollars contributed to political campaigns, the revolving door between government and industry, and privileged access to inside information—all of which have led to policies that favor the few against the public interest. An Obama presidency will use cutting-edge technologies to reverse this dynamic, creating a new level of transparency, accountability and participation for America’s citizens. Technology-enabled citizen participation has already produced ideas driving Obama’s campaign and its vision for how technology can help connect government to its citizens and engage citizens in a democracy. Barack Obama will use the most current technological tools available to make government less beholden to special interest groups and lobbyists and promote citizen participation in government decision-making. Obama will integrate citizens into the actual business of government by:
    –Making government data available online in universally accessible formats to allow citizens to make use
    of that data to comment, derive value, and take action in their own communities.
    –Establishing pilot programs to open up government decision-making and involve the public in the work
    of agencies, not simply by soliciting opinions, but by tapping into the vast and distributed expertise of
    the American citizenry to help government make more informed decisions.
    –Requiring his appointees who lead Executive Branch departments and rulemaking agencies to conduct
    the significant business of the agency in public, so that any citizen can watch a live feed on the Internet
    as the agencies debate and deliberate the issues that affect American society.
    –Restoring the basic principle that government decisions should be based on the best-available,
    scientifically-valid evidence and not on the ideological predispositions of agency officials.
    –Lifting the veil from secret deals in Washington with a web site, a search engine, and other web tools
    that enable citizens easily to track online federal grants, contracts, earmarks, and lobbyist contacts with
    government officials.

    • PeasantParty says:

      Oh Pooh! That was before he had gotten the desk chair warmed up. Didn’t mean a thing and you shouldn’t bring it up, ever! Just ask Rahm, he will remind you again if you need a refresher./ snark ;-)

      He really made us believe he meant what he said, huh?

      • donbacon says:

        Waddya mean us, kimosabe? Obama was a Reagan-loving, Lieberman-mentored freshman senator without any achievements, who said in 2004: “There’s not much of a difference between my position [on Iraq] and George Bush’s position at this stage. The difference, in my mind, is who’s in a position to execute.”

        The two parties have similar goals but each claims to be more efficient and effective than the other. United we stand.

      • ethelbramble says:

        Can I join your Peasant Party?
        Do you remember the look on Obamas’ face when he took over the oval office and immediately the security people confiscated his telemovil? I think he found out a few things after he got elected that changed his mind about some of his election promises. He has a wife and two daughters to protect from the rest of the crooks.

  6. bluewombat says:

    Secret laws? Secret INTERPRETATIONS of laws?

    If the American people were politically engaged — like, oh, say, the Syrians, the Egyptians, the Bahrainians and the Tunisians — they’d be out in the streets.

  7. powwow says:

    Thank you, Rand Paul and other resisting Senators (including, I presume, Ron Wyden & Mark Udall, who now have an informative article up at HuffingtonPost – building on Udall’s superb floor comments as quoted above). Your principled resistance to leadership bullying and to peer pressure to shove this legislation through without Senate consideration, and Paul’s courage in determining to force the Senate to stay late (including later than the expiration of the existing extension), if need be, to make a point about shirked Senate responsibilities, may well be paying off, with direct benefits to the American people. [It should be noted that, in case of the expiration of the current extension, all the government’s existing spying authorities will be grandfathered in, post-expiration, so the FBI would lose very little authority in the short term, anyway (never mind the fact that the President doesn’t return to this country until Saturday, and thus couldn’t sign any further extension into law until that time).]

    As I just noted in Kevin’s MyFDL PATRIOT Act thread, I’m not quite sure that I believe my ears, and will have to wait and see what develops tomorrow, but judging from what Harry Reid said this evening, as he shut down the Senate for the night (at 7:45 p.m.), there may well be a real opportunity tomorrow for amendments to be made to this legislation, after all.

    Majority Leader Reid announced, just before adjournment, that the “second-degree amendment” filing deadline is 9:40 a.m. on Thursday – 10 minutes after the Senate convenes for the day. [At the moment, recall, there’s no room for any second-degree amendments to Reid’s 4-year-extension amendment, and won’t be, unless and until Reid withdraws the measures he filed yesterday to “fill the tree.”] Reid further indicated that the Senate is close to a final (unanimous consent) agreement for “amendments” tomorrow, and that they’ve made “good progress” toward that (backroom-negotiated) agreement today.

    The cloture vote on Reid’s extension amendment to the House message to S. 990 is still scheduled to be held at 10:00 a.m. on Thursday. But it just may be that enough Senators – enough to deny a 60-vote supermajority (41 or more) – will refuse, or have refused, to vote for cloture tomorrow unless the Senate is guaranteed a genuine opportunity (including, I would hope, simple-majority margins for passage of amendments) to debate and amend this legislation before final passage. One way or another, though, there seems to have been another sudden U-turn in the road to enactment of this legislation since last evening/earlier today.

    Here’s hoping that this second apparent U-turn is for real…

      • powwow says:

        In addition to what I just noted in a reply to Larue late in Kevin’s thread, it’s important to realize that the present situation, with regard to this legislation and this Party-dominated Congress, amounts to a battle against overwhelming odds, with our backs against the wall.

        Regardless of what we may wish to be true, in such a situation just taking one step at a time is a struggle, as well as a worthy achievement – as I’m sure that Rand Paul, for one, can certainly attest by now.

  8. donbacon says:

    Sorry about the lack of compression on the pdf, Marcy. I usually do better, and I didn’t get to the edit in time..

  9. earlofhuntingdon says:

    Targeting data collection on all Americans, hundreds of millions of whom have not committed and will not commit serious crimes?

    That would be a tale about the gutting of limits on permissible searches and seizures. It would be a tale inescapably about profiling all Americans, profiling that targets personality constructs generated by the imaginations of the government’s best intelligencers, or its Paul Wolfowitzes, Dick Cheneys and David Addingtons.

    It would be about targeting “likely” future behavior – not actual, past conduct – the government, in its sole private discretion deems undesirable. At a cost of undisclosed billions.

    That’s something we ought to talk about more fully and openly, don’t you think?