Senator Wyden Puts A Hold On Intelligence Authorization Bill To Block FBI Warrantless Surveillance

from the there-goes-that-wyden-guy-again dept

As we've discussed, some surveillance/law enforcement hawks have tried to rush through a law to expand the power of national security letters (NSLs) to paper over the long standing abuse of NSLs, by saying that they can use those documents (which have basically no oversight and don't require a warrant) to collect a ton of private info, including email info and web browsing histories. The rushed vote on this -- stupidly citing the Orlando attacks, despite the fact it would have done nothing to stop that -- failed but just barely. Basically, if Senator Dianne Feinstein were able to attend the vote, it likely would have passed. The support for it was one vote shy, and then Sen. Mitch McConnell changed his vote for procedural reasons to be able to bring it back for a quick follow up vote.

Now, as Congress rushes towards that vote, Senator Ron Wyden stepped up today to use his power as a Senator to put a hold on the entire Intelligence Authorization bill. He gave a short floor speech explaining his reasons.

I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities.

The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.

It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records. The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority.

And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014. As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.” No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight. In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly.

Of course, to some extent, this is little more than show. It's pretty clear that McConnell has the votes to get this passed, which is why Wyden has now taken the dramatic step of putting a hold on the bill. But the 60 votes here are usually what is necessary to break a hold (which remains a widely used, but informal, Senate rule). So in the end this won't mean much, but we've been here before again and again and again. And by now it should be clear: When Ron Wyden says that the government is abusing laws to spy on Americans, he's not lying. We shouldn't then paper over that abuse and give the FBI or the NSA or anyone else greater powers to spy on Americans. Because they use that power and they don't tend to use it wisely and judiciously.

Can anyone explain, seriously, why the emergency powers that allow the FBI to do the search in an emergency and then get the warrant after are somehow too problematic? Or why the FBI can't go and get a warrant at all? It's a petty quick process for them these days. This whole effort seems designed solely to wipe out what little oversight there is of the FBI and its use of national security letters.

Filed Under: 4th amendment, hold, intelligence authorization, mitch mcconnell, national security letters, nsls, ron wyden, warrants

Sen. Rockefeller Sitting On FOIA Improvement Act, Despite Two Unanimous Votes In Favor Of Passage

from the bipartisan-support-meets-gov't-agency-resistance dept

A FOIA reform bill that sailed through both the House (410-0) and the Senate Judiciary Committee (again with a unanimous vote) is currently stalled, having gone nowhere for the past two weeks thanks to Sen. Jay Rockefeller.

The Freedom of Information Act Improvements Act (hereinafter cited as "FOIAIA") helps put the "freedom" back in the FOIA -- something that has a chance to trim down the number of requests that result in fully-redacted pages or federal lawsuits. Rockefeller has expressed some concerns about the openness of the open records law improvements.

"I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses," Rockefeller said in a statement Friday. "According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill."

The two agencies offering up the most resistance to the bill appear to be the FTC and the SEC, both of which apparently feel the law creates a playground for targets of its investigations.

[S]ources said the agencies' concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.

There also appears to be a law enforcement contingent pushing for death of this bill as well.

"The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that 'the agency reasonably foresees that disclosure would harm an interest protected by' the exemption invoked," said a Rockefeller aide who asked not to be named. "Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes."

Transparency advocates point out that privileged attorney-client communications will remain privileged even with the passage of the bill and that government agencies will still retain the power to redact information and withhold documents -- they'll just need to start providing better explanations for these actions. As for the concerns about the new "forseeable harm" requirement? That requirement isn't even new.

"Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton's term. It was only during President George W. Bush's term of secrecy that this standard was rolled back," [Patrice McDermott of OpenTheGovernment.org] wrote.

So, it appears Rockefeller is hoping the whole thing just goes away. The reform bill had already been watered down post-House passage and additional concerns raised by Tom Coburn had been addressed, resulting in him releasing his hold on the legislation late last week. Now, it's up to Rockefeller to do the same. If he doesn't do it by the end of the day on Monday, the bill dies.

As it stands now, Rockefeller is standing alone among his fellow senators and representatives. Two unanimous votes -- one in the House and one in the Senate -- are being negated by a single Senator. Supporters of FOIA reform are urging people to contact his office and make it clear that Rockefeller alone shouldn't get to decide whether this bill lives or dies, especially considering its path to this point.

Sen. Jay Rockefeller
Phone: 202-224-6472
Fax: 202-224-7665
Email: Sen.Rockefeller@opencongress.org
Twitter: @senrockefeller

Filed Under: foia, ftc, hold, investigations, jay rockefeller, sec, transparency

Negotiations Continue Over Extension Of Feds Ability To Spy On Americans; But No Debate On The Issues

from the of-course-not dept

With the end of the year approaching, Senator Ron Wyden has admitted that he's willing to drop the hold on the renewal for the FISA Amendments Act in exchange for allowing some key amendments to be voted on. As summarized by David Kravetz at Wired:

Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans’ communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

If that doesn’t go over, he’d lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.

“I’m willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate,” Wyden said.

Of course, we've seen this before. Just last year we had a "short-term extension" on these things for the sake of debate, but the "debate" never came. Instead, everyone waits until now, when the rules are about to expire, and then demand that it be renewed, sans debate, or else "terrorism!" The whole process is really kind of unfortunate. There should have been a debate years ago, before the FISA Amendments Act was rushed into law. But, unfortunately, actually considering the implications of these laws -- and how they're used and interpreted -- just doesn't seem to be a major issue for Congress.

Filed Under: debate, fisa, fisa amendments act, hold, negotiations, ron wyden

Senator Wyden Puts Hold On Intelligence Authorization Act Over Free Speech Concerns

from the good-for-him dept

Once again, Senator Ron Wyden seems like one of a very small number of people in Congress actually willing to stand up against bad bills that are pushed forward with fear mongering. Earlier this year, we noted just how absolutely ridiculous it was that Senator Dianne Feinstein seemed a hell of a lot more concerned about punishing whoever blew the whistle on questionable US activities like Stuxnet, then about the questionable activities themselves. In response, she put forth some legislation that was designed to punish government whistleblowers, rather than understand why they were blowing the whistle. This bill got dumped into a key appropriations bill, the Intelligence Authorization Act for Fiscal Year 2013. In other words, Feinstein basically said that if we are to fund intelligence activities we have to crack down on whistleblowers. Shameful stuff.

Thankfully, Senator Wyden has now put a hold on the bill, noting his concern about how it would impact free speech issues, especially as it pertained to the media reporting on national security:

"I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know," Wyden said in a floor statement publicly announcing his hold. "Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas."

Of course, part of the issue here is that Feinstein sees any form of whistleblowing or commentary as "leaks," while Wyden properly recognizes that a functioning democracy means allowing the press to report on questionable behavior by the government.

Filed Under: dianne feinstein, hold, intelligence authorization act, leaks, ron wyden, whistleblowing