Sounding the alarm: Ars speaks with vocal NSA critic Sen. Ron Wyden

As a series of top-secret NSA documents have been leaked over the past several weeks, the issue of widespread government surveillance has been front-and-center in the public eye. For some, those documents were shocking revelations; for privacy activists and digerati who have followed cases like Jewel v. NSA, they were less surprising than they were useful. The documents leaked by a former NSA contractor offered solid confirmation of what had long been suspected—that the NSA had created a giant information vacuum, sucking up all manner of data. 

Another group that couldn’t have been surprised: politicians in Congress’ top intelligence committees. But few had complained publicly about overbroad surveillance. Two exceptions are Sens. Ron Wyden (D-OR) and Mark Udall (D-CO), both of whom sit on the Senate Intelligence Committee.

“I want to deliver a warning this afternoon,” Wyden said in 2011. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” 

Two years later, in small but noticeable ways, that anger is coming to the fore. Recent polls show that more Americans see the government as going too far in restricting civil liberties. A shift is clearly happening in Congress, as well. Last week, the House of Representatives was just eight votes away from de-funding the NSA telephone program.

Last week, Ars spoke to Wyden about his longstanding critique of NSA surveillance, what has happened since the leaks began, and views of the leaker Edward Snowden himself. 

Ars Technica: In the past two months, much has been revealed about what kind of surveillance the NSA is doing, largely because of leaked documents. Is there more we don’t know, that we should know? And can you characterize what we don’t know in any way? 

Senator Ron Wyden: There is a lot more to know, particularly in terms of getting a declassified version of the legal analysis used by the FISA court. When people get that, and see it in the context of the bulk phone records program, they will see how astoundingly broad it is. We’ve got secret law, authorizing secret surveillance, being interpreted by a largely secret court.

The administration’s legal rationale talks about something that sounds like there’s a connection to terrorism. Instead, it’s morphed into an arrangement where, for millions of law-abiding Americans, the government knows who they called, when they called, and where they called from. It’s a treasure trove of human relationship data. In my view, that reveals so much about the lives of law-abiding Americans.

Ars: In your last speech you mentioned location a few times. Do Americans need to be worried that their location is being tracked right now?

Sen. Wyden: The government says they have the authority to do it. I can’t get into anything beyond that. They have said they’re not doing it today.

In public session, I have particularly pressed the intelligence community to describe what legal rights are of law-abiding Americans with regard to whether or not they can be tracked. We have 24/7 tracking devices in our pockets. I asked the head of the FBI: given that the law is unsettled with regard to protection, I’d like to have you describe here in an open setting, what are the rights of Americans today as the courts are settling this? They have been unwilling on repeated occasions to give an answer.

Ars: Why have you been one of the only members of Congress speaking out about this?  

Sen. Wyden: Well, I think there have been remarkable developments in the last eight weeks. Before that, you wouldn’t have had this issue debated on the floor of the House—and you wouldn’t have had by a mile more than 200 members of the US Congress saying, look, we’ve got real problems with the status quo. I consider that huge, huge progress in our fight to show that security and liberty are not mutually exclusive.

In the Senate, more than a quarter of the US Senate has sent a very tough letter to General Clapper speaking to exactly how the intelligence community justifies the bulk phone records collection on hundreds of millions of Americans. One of the concerns we feel most strongly about is that the intel community has not been willing to show how bulk phone record collection provides unique value that they can’t obtain through emergency authorities and the court order process.

Ars: What changed the minds of your fellow members? 

Sen. Wyden: Members of Congress went home. In senior citizen centers, company lunchrooms, and all kinds of places where the public gathers, citizens are coming up to their legislators and saying, ‘Hey—what’s this deal with all this business about the government collecting my phone records? I didn’t do anything wrong.’

I don’t necessarily have to run hither and yon to get colleagues involved in these discussions. They are coming up to Senator [Mark] Udall and I, asking for more information, asking for staff briefings. The senators are getting asked about this when they go home. Political change doesn’t start in Washington and trickle down; it’s bottoms-up.

This has given us a huge, huge wave of momentum. I never conceived of the day when people would come up to me at the barber shop and ask me about the FISA court. 

Ars: What are the next steps that need to be taken? 

Sen. Wyden: We’ll be getting the information back from the intelligence community [in response to our inquiries] very soon. We’ll bring it up behind closed doors, as well as in public, on the Senate floor. Senator Udall and I are going to make some additional remarks soon, particularly regarding the fact that the intelligence community has not just kept the US in the dark, they have actually misled the American people, actively. We’re going to be walking the country through those issues.