Senator: Weak oversight of NSA may lead to massive location tracking

“Most of us have a computer in our pocket that can be used to track us 24/7.”

Rob Pegoraro – Jul 23, 2013 4:15 pm | 79

WASHINGTON—The National Security Agency (NSA) needs no new court rulings or eavesdropping tools to see how angry Sen. Ron Wyden (D-OR) is about its conduct and oversight.

In a 45-minute speech at the Center for American Progress, the senator denounced the combination of an “always expanding, omnipresent surveillance state” and a covert corpus of law that hardly restraints it.

“That’s not the way we do it in America!” he said, his voice rising. “We don’t keep laws secret!”

“You simply cannot have an informed debate,” he continued. “And when the American people are in the dark, they cannot make fully informed decisions about who should represent them.”

Most tellingly, Wyden repeatedly invoked the possibility of the NSA doing location-tracking. In its first report on the leaks, The Guardian said that the location data is part of what the NSA gets in its dragnet collection of telephone data; but the secret Verizon court order it published didn’t specifically mention location data.

“Most of us here have a computer in our pocket that can potentially be used to track and monitor us 24/7,” Wyden remarked early on, before vaguely warning of the prospect of “a surveillance state that cannot be reversed.” Later he added: “Without additional protections in the law, every single one of us… may be and can be tracked and monitored anywhere we are at any time.” And again: “Today, government officials openly tell the press that they have the authority to effectively turn America’s cell phones and smartphones into location-enabled homing beacons.”

The Oregonian senator blamed this on Congress’s lenient post-9/11 lawmaking (in which he has lately been a vocal dissenting minority) and the Foreign Intelligence Surveillance Court’s subsequent sweeping expansion of the NSA’s reach.

“I know of no other court in America that strays so far from the adversarial process,” Wyden said. Of 1,789 electronic-surveillance requests submitted in 2012, the court denied none and modified 40, while the government withdrew one.

And no other court in America keeps its own opinions so secret. Wyden said the Obama administration had assured him in writing in 2009 “that a process would begin to be created to start redacting and declassifying FISA Court opinions.”

But nothing changed: “In the last four years, exactly zero opinions have been released.”

What’s the NSA doing with its inflated authority? Wyden probably knows, courtesy of his seat on the Senate Select Committee on Intelligence, but he cannot say.

He can, however, repeatedly evoke a disturbing possibility of the Patriot Act’s Section 215 authority to collect business records gathered by third parties with which citizens interact: building a database of people’s locations as recorded by their phones.

Wyden has been one of a few members of Congress with a long-lasting concern about overbroad surveillance. When he asked the administration about location tracking almost two years ago, he didn’t get a satisfying answer. “I want to deliver a warning this afternoon,” Wyden said during a 2011 debate. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

Former NSA contractor Edward Snowden’s leaks, however, left Wyden at liberty to discuss and dismiss the utility of the NSA’s phone-metadata collection while allowing that its PRISM surveillance of probably-foreign-linked Internet traffic delivered real value. “I haven’t seen any indication that the bulk phone records yielded any unique intelligence that wasn’t also available to the government through less intrusive means.”

The senior senator from Oregon expressed cautious optimism for reform, citing a recent swing in public opinion and hitherto-hidden reversals such as his 2011 push with Sen. Mark Udall (D-CO) to end an NSA e-mail-metadata harvesting program.

Wyden said he’s working to get FISA court opinions “declassified in a responsible manner” and bring “an adversarial process” to that body. He didn’t mention another questionable aspect of it—the Chief Justice of the Supreme Court’s unchecked power to pick its judges.

Wyden closed by invoking the warning of James Madison from Federalist No. 47 (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands […] may justly be pronounced the very definition of tyranny”). He asked, “By allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret, non-adversarial court and occasional secret Congressional hearings, how close are we to James Madison’s definition of tyranny?”