New Patriot Act Controversy: Is Washington Collecting Your Cell-Phone Data?

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Update Appended: June 24, 2011

The U.S. Senate Intelligence Committee is weighing fresh concerns about the sweeping nature of domestic spying using one controversial section of the Patriot Act. This particular part of that law is notable because it has been divisive for years — and because during those years President Obama has quietly moved from being a Senator skeptical of the provisions to being an enthusiastic spy chief whose Administration embraces them.

Last Tuesday the committee met to consider the worries of some members, mostly Democrats, who say the Justice Department has drafted a breathtakingly broad interpretation of Section 215 of the Patriot Act.

That section allows the FBI to seize without a warrant "any tangible things," like documents, so long as they are part of an effort to protect the country against international terrorism. The FBI can order a private company to turn over data as long as the bureau can convince a special national-security court, the Foreign Intelligence Surveillance Court, that the information is "relevant" to antiterrorism work.

Obama Administration officials emphasize that this review by the intelligence court is an important step in protecting privacy. Privacy advocates, however, consider it little more than a rubber stamp. " 'Relevant' means some noncrazy reason for asking for it," said the Cato Institute's Julian Sanchez, who believes the government is using that authority to sweep up huge amounts of communications data.

The Intelligence Committee met in secret, and members are not permitted to say anything publicly about the deliberations. Senator Ron Wyden did tell TIME that the Justice Department opinion made the broad authority in Section 215 really broad. "When you read that opinion, the classified opinion — that I can't say a word about — and you set it down next to the text of the law, there is a big gap," he explained. "That is what this issue is all about." (The American Civil Liberties Union announced in May that it was seeking the opinion through the Freedom of Information Act and would sue to get it.)

Senator Tom Udall, a New Mexico Democrat, went further, saying the government was using that opinion to conduct some sort of dragnet surveillance. "Innocent Americans are being swept up in this," was about all Udall could say to TIME.

That sounds a lot like something a certain junior Senator from Illinois might have said back in December 2005, when he joined eight other Senators in penning a dear-colleague letter that argued, among other things, that Section 215 was too broad. "We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy," wrote Obama and the other Senators.

When efforts failed to limit spying under Section 215 to terrorists, the future President took to the Senate floor on Dec. 15, 2005, to decry the government's power to go on what he called "a fishing expedition through every personal record or private document, through library books they've read and phone calls they've made."

But, as they say in Washington, where you stand depends on where you sit. As Congress considered reauthorization of the Patriot Act on May 25 this year, Obama's Director of National Intelligence, James Clapper, wrote to Senate leaders, urging them to reauthorize Section 215 and two other parts of the law in particular, or "important classified collection programs might be forced to shut down."

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