Wyden, Experts Want End to Patriot Act-Era Surveillance Program

Congress can protect privacy and national security by letting the Patriot Act-related phone records program and other unwanted surveillance authorities expire (see 1905060048), said Sen. Ron Wyden, D-Ore. Friday's comments responded to Office of National Intelligence outgoing Director Dan Coats’ request that the Senate Intelligence and Judiciary Committees permanently reauthorize certain Patriot and USA Freedom Act-related authorities. Coats seeks permanent authorization of a controversial call detail records (CDR) program he acknowledged the intelligence community suspended. Privacy advocates hoped ODNI would allow some provisions to expire, after reports the program had gone dormant (see 1904240068).

After “stonewalling” questions from Senate Intelligence Committee members for months, Coats “finally admitted that the Patriot Act’s phone records dragnet is no longer operational,” Wyden said in a statement: His letter offers “the flimsiest of justifications for reauthorizing a discredited, flawed surveillance program that never lived up to its supporters’ claims and that the IC itself decided to end.” ODNI and the NSA didn’t comment.

The unclassified letter was sent to Senate Intelligence Committee Chairman Richard Burr, R-N.C., and ranking member Mark Warner, D-Va., and Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and ranking member Dianne Feinstein, D-Calif. Burr earlier told us he wants to reauthorize the Section 215 phone surveillance program, and Warner said he’s open to hearing justification for reauthorization. Warner’s office declined comment now, and the other three didn’t comment. Offices for House Intelligence Committee Chairman Adam Schiff, D-Calif., and ranking member Devin Nunes, R-Calif., also didn’t comment.

Set to expire in December, the USA Freedom Act “preserved significant national security authorities, enhanced protection for privacy and civil liberties, and increased transparency,” Coats wrote Wednesday. He cited three important national security authorities granted by the act, with the CDR program listed separately: acquisition of business records under Title V of the Foreign Intelligence Surveillance Act (FISA), roving wiretap authority and lone wolf authority. He claimed there’s “no history” of abuse for more than 18 years under the act.

NSA suspended the CDR program while weighing intelligence value versus cost, compliance and data integrity concerns “caused by the unique complexities of using these company-generated business records for intelligence purposes,” Coats said. As technology evolves, “our adversaries’ tradecraft and communications habits will continue to evolve and adapt. In light of this dynamic environment, the administration supports reauthorization of this provision as well,” Coats wrote.

Congress should not only end the CDR program but also “enact a series of meaningful FISA reforms as part as any reauthorizations,” emailed Constitution Project Senior Counsel Jake Laperruque Friday. He said the administration’s proposal is “completely unrealistic, and shows a total disconnect from what Congress and even the Intelligence Community think about the CDR program,” which is invasive, impossible to manage and provides no demonstrated security value.

The USA Freedom Act added “valuable” civil liberty protections to existing authorities, but the call records program needs to expire, said Cato Institute Senior Fellow Julian Sanchez. Both the CDR original program and the amended, narrower version are extremely invasive and provide little intelligence value, he argued, noting “plain vanilla” Section 215 authority allows call record access. “No government agency ever likes to give up a statutory power, but this is a foolish hill to fight on: They should admit the whole thing was a mistake and move on,” he said. If some pressing future need arises, the intelligence community should make a case for it then, he added, “not just leave the authority lying around out of inertia.”

There needs to be a robust debate at a hearing, where the IC should justify its request for these authorities, said World Privacy Forum Executive Director Pam Dixon in an interview. She argued none of the authorities should be granted on a permanent basis.

Earlier last week, advocates urged the House Intelligence Committee to repeal CDR authority and implement Section 215 revisions. Access Now, Color of Change, Demand Progress, Freedom of the Press Foundation and New America’s Open Technology Institute were among some 35 groups that signed (see 1908140022). The CDR program “permits the mapping of relationships among members of marginalized communities and distant associates of targeted individuals, even when most individuals in those communities were never suspected of wrongdoing,” said Free Press Action Government Relations Director Sandra Fulton. “Historically, authorities have used such overbroad authority to harass members of these communities, especially those who speak out when their rights are under threat.” OTI Policy Director Sharon Bradford Franklin told us it’s “appalling” the administration is seeking renewal. She noted NSA "has recognized that the program is ineffective and simply not worth the technical challenges.”

The Intelligence and National Security Alliance declined comment. The Association of Former Intelligence Officers didn’t comment.