The Secret Patriot Act Is Staying Secret

Flashback:

– Senator Ron Wyden Says There’s a Secret Patriot Act: ‘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, and the reliance on secret interpretations of the law is growing.’

– Senate Panel Keeps ‘Secret Patriot Act’ Under Wraps (Wired, August 2, 2011):

The secret Patriot Act is staying secret.

Two Senators have been warning for months that the government has a secret legal interpretation of the Patriot Act so broad that it amounts to an entirely different law — one that gives the feds massive domestic surveillance powers, and keeps the rest of us in the dark about the snooping.

“There is a significant discrepancy between what most Americans – including many members of Congress – think the Patriot Act allows the government to do and how government officials interpret that same law,” wrote the Senators, Ron Wyden and Mark Udall. “We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret. ”

The Senators tried to get the government to reveal some of the law’s contents, by forcing the Director of National Intelligence and the Attorney General to produce a report outlining when this secret surveillance has gone overboard. Yesterday, the effort failed. The Senate Select Committee on Intelligence said no to the report by rejecting Wyden and Udall’s amendment to the FY2012 Intelligence Authorization Act.

In other words: we are all still in the dark about how the government is spying on us.

The Senators won’t say, exactly, what elements of this secret Patriot Act have them so spooked. But Wyden told Danger Room in May that the so-called “business-records provision” is a major source of concern. It empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

So instead, the Senators are left to make vague — if vociferous — protests. “In our view, the executive branch’s decision to conceal the U.S. government’s official understanding of what this law means is unacceptable, and untenable in the long run,” Wyden and Udall wrote in the committee’s report on the Authorization Act. “Intelligence agencies need to have the ability to conduct secret operations, but they should not be allowed to rely on secret laws.”

As Secrecy News notes, the committee also rejected an amendment by Wyden and Udall that would have required the Justice Department to estimate how many Americans have been eavesdropped on, in violation of another surveillance law, the FISA Amendments Act of 2008. That amendment was voted down, 7-8.

Instead, the committee seemed more focused on potential threats to the intelligence community, rather than the spies’ overreach. The Senators worried about the intelligence agencies’ impulse to move classified information to the cloud, and demanded an “independent review of the efficiency and security implications” of the shift in six months. The committee also expressed concern about how many gadgets and gadget components are now made overseas — and could therefore have backdoors from foreign intelligence agencies built in.  The Senators want a second report in six months on “counterintelligence threats to the U.S. telecommunications infrastructure, including any risks associated with purchasing equipment and services from foreign manufacturers and suppliers.”