Tom Udall’s cousin, Sen. Mark Udall (D-Colo.), and Wyden, both members of the Intelligence Committee and briefed on the country’s mostly closely held secrets, have pressed for more transparency on how the Foreign Intelligence Surveillance Act (FISA) is interpreted and carried out. The phone records program, first disclosed by USA Today in 2006, is conducted under an amendment to the FISA law known as Section 215 — or the “business records provision” — of the Patriot Act.
The senators are also concerned about another FISA program, this one authorized by Section 702 of the 2008 FISA Amendments Act. That provision allows the government to collect the communication of foreign targets overseas through U.S. Internet firms, but it also means that Americans who communicate with the targets also have their e-mail picked up.
For the small part of the public that has closely followed Senate debates and the questioning of intelligence officials, the serial suggestions of government overreach have been tantalizing but also aggravating.
Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology, said advocates have long realized that Wyden, Udall and others were sounding an alarm but could only guess at the specifics.
“They’ve been jousting with shadows,” Nojeim said.
Lawmakers from the right and the left have questioned the government’s exercise of its powers, including Sen. Bernard Sanders (I-Vt.), Sen. Richard J. Durbin (D-Ill.), Sen. Mike Lee (R-Utah), Rep. Jerrold Nadler (D-N.Y.) and Rep. John Conyers Jr. (D-Mich.).
Their concerns go back to the fraught days following the Sept. 11 attacks when Congress, under pressure to prevent further attacks, passed the Patriot Act. One provision was Section 215, which made it easier for authorities to obtain the records of Americans.
Before 2001, the records were linked to travel: They could be from hotels, rental car agencies, airlines. And they had to be relevant to a particular person — an “agent of a foreign power.”
With 215’s passage, the government could now get “any tangible things” — not just hotel records, but phone records and library records. And, significantly, they did not have to belong to a suspected terrorist or spy. They only had to be relevant to an authorized investigation.
“That was the big change,” Nojeim said. “You’re taking away the provision that protects Americans. Bam. Now you’ve got the records of everyone.”