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Udall, Bipartisan Group of Senators Seek Answers from DNI Clapper on Bulk Data Collection Program

Posted: Friday, June 28, 2013

The recent public disclosures of secret government surveillance programs have exposed how secret interpretations of the USA PATRIOT Act allow for the bulk collection of massive amounts of data on the communications of ordinary Americans with no connection to wrong-doing. Reliance on secret law to conduct domestic surveillance activities raises serious civil liberty concerns and all but prevents the public from engaging in an informed national security and civil liberty debate.

In order to foster that debate, Senator Mark Udall, who serves on the U.S. Senate Select Committee on Intelligence, and a bipartisan group of 25 other senators, sent a letter pressing Director of National Intelligence James Clapper to publicly provide information about the duration and scope of the bulk phone-records collection program and provide examples of its effectiveness in providing unique intelligence, if such examples exist.

"We are concerned that by depending on secret interpretations of the PATRIOT Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law," Udall and his colleagues wrote in the letter. This and misleading statements by Intelligence officials have "prevented our constituents from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly. The debate that the President has now welcomed is an important first step toward restoring that trust."

The senators expressed their concern that the PATRIOT Act bulk collection program itself has a significant impact on the privacy of law-abiding Americans and that the same "business records" authority under the PATRIOT Act that has been interpreted to allow this bulk collection could be used for the bulk collection of records beyond phone metadata. For example, this authority could be used to give the government access to private financial, medical, consumer and firearm sales records, along with other information.  In addition to raising concerns about the law's scope, the senators noted that keeping the official interpretation of the law secret and the instances of misleading public statements from executive branch officials have prevented the American people from engaging in an informed public debate about national security and domestic surveillance.

The senators are seeking public answers to the following questions in order to give the American people the information they need to conduct an informed public debate.

  • How long has the NSA used PATRIOT Act "business records" authorities to engage in bulk collection of Americans' phone records? Was this collection underway when the law was reauthorized in 2006? 
  • Has the NSA used PATRIOT Act authorities to conduct bulk collection of any other types of records pertaining to Americans, beyond phone records? 
  • Has the NSA collected or made any plans to collect Americans' cell-site location data in bulk? 
  • Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records? If so, please describe these violations. 
  • Please identify any specific examples of instances in which intelligence gained by reviewing phone records obtained through the PATRIOT Act bulk collection program proved useful in thwarting a particular terrorist plot.
  • Please provide specific examples of instances in which useful intelligence was gained by reviewing phone records that could not have been obtained without the bulk collection authority, if such examples exist. 
  • Please describe the employment status of all persons with conceivable access to this data, including IT professionals, and detail whether they are federal employees, civilian or military, or contractors.  

The Senators signing the letter are: Mark Udall (D-Colo.), Ron Wyden (D-Ore.), Lisa Murkowski (R-Alaska), Pat Leahy (D-Vt.), Mark Kirk (R-Ill.), Dick Durbin (D-Ill.), Tom Udall (D-N.M.), Brian Schatz (D-Hawaii), Jon Tester (D-Mt.), Jeanne Shaheen (D-N.H.), Dean Heller (R- Nev.), Mark Begich (D-Alaska), Bernie Sanders (I-Vt.), Patty Murray (D-Wash.), Jeff Merkley (D-Ore.), Mazie Hirono (D-Hawaii), Al Franken (D-Minn.), Tom Harkin (D-Iowa), Chris Coons (D-Del.), Maria Cantwell (D-Wash.), Richard Blumenthal (D-Conn.), Max Baucus (D-Mont.), Elizabeth Warren (D-Mass.), Martin Heinrich (D-N.M.), Tammy Baldwin (D-Wisc.) and Mike Lee (R-Utah).

By: James Dakin Owens
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