NEW YORK – Using the Patriot Act, the U.S. government has been secretly tracking the calls of every Verizon Business Network Services customer – whom they talked to, from where, and for how long – for the past 41 days, according to a report published by The Guardian.
"From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents," said Jameel Jaffer, American Civil Liberties Union deputy legal director. "It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies."
The program was put in place under the Patriot Act’s Section 215, a controversial provision that authorizes the government to seek secret court orders for the production of "any tangible thing" relevant to a foreign-intelligence or terrorism investigation. Recipients of Section 215 orders, such as telecommunications companies, are prohibited from disclosing that they gave the government their customers’ records.
"Now that this unconstitutional surveillance effort has been revealed, the government should end it and disclose its full scope, and Congress should initiate a full investigation," said Michelle Richardson, legislative counsel with the ACLU Washington Legislative Office. "This disclosure also highlights the growing gap between the public’s and the government’s understandings of the many sweeping surveillance authorities enacted by Congress. Since 9/11, the government has increasingly classified and concealed not just facts, but the law itself. Such extreme secrecy is inconsistent with our democratic values of open government and accountability."
The first information about the government’s use of Section 215 was made public in response to Freedom of Information Act litigation filed by the ACLU 10 years ago. More recently, members of Congress have warned that the government has secretly interpreted Section 215 in a way that would shock Americans. In 2012, Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) wrote, “When the American people find out how their government has secretly interpreted the Patriot Act, they are going to be stunned and they are going to be angry.”
In May 2011, shortly before Section 215 was scheduled to expire, the ACLU filed a new FOIA request in an effort to learn more about the “secret interpretation” to which Sens. Wyden and Udall had referred. Congress reauthorized Section 215 without amendment until 2015, and for the last two years, the government has refused to describe its secret interpretation. Whether or not the program described by The Guardian reflects that “secret interpretation,” today’s disclosure confirms that the government has interpreted Section 215 extraordinarily broadly.
This disclosure is likely to have significant implications for the ACLU’s pending FOIA lawsuit. The Department of Justice is scheduled to file a brief in that case on June 13; the ACLU’s response is due on June 28, and oral argument is scheduled for July 11 in the Southern District of New York.
More information on the ACLU’s FOIA lawsuit requesting information on Patriot Act Section 215 is at: aclu.org/national-security/section-215-patriot-act-foia