The Electronic Frontier Foundation (EFF) has filed an amicus brief on behalf of Rep. Jim Sensenbrenner (R-WI) against the National Security Agency (NSA). Sensenbrenner is the author of the original Patriot Act The case against the NSA was initiated by the ACLU. According to Sensenbrenner, it was never the intent of Congress for the Patriot Act to be used as a tool through which the NSA could collect the records of any telephone call made to, from and within the United States. In the brief, Sensenbrenner appeals to the court to deny the NSA's motion to dismiss. He is also asking that the court grant the ACLU's motion for a preliminary injunction, which would halt the program pending the court's decision.
When it was first learned that the NSA was using Section 215 of the Patriot Act to obtain data, the ACLU filed a lawsuit. Following that, a group of lawmakers, led by Sensenbrenner, came out in opposition to the NSA's practices as far surpassing the surveillance authority granted by Congress.
Sensenbrenner has said: "I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security." Sensenbrenner, who chaired the House Judiciary Committee during the Patriot Act debates, also remarked that a “large, intrusive government-however benevolent it claims to be-is not immune from the simple truth that centralized power threatens liberty. Americans are increasingly wary that Washington is violating the privacy rights guaranteed to us by the Fourth Amendment."
Additionally, Sensenbrenner sent aletter to Attorney General Eric Holder regarding the NSA’s bulk collection of data and the Obama administration’s misinterpretation of Section 215 of the Patriot Act.
At issue is the fact that an FBI training manual specifically lists gun sales as records the FBI can access under Section 215, the so-called business records provision. According to Sensenbrenner:
“The flawed logic the Obama administration relied on to support bulk collection of Americans’ phone data would also support bulk collection of other personal data. Does the administration believe it has the authority to indiscriminately collect records of firearms sales?
The FBI, for example, could conclude that it is interested in firearms sales – not only in the type of firearms being purchased, but also in who is selling firearms to whom – thereby ascribing importance to the connections between the buyers and sellers. These connections would make firearms sales indistinguishable from phone records under the administration’s analysis.
The administration’s legal view of Section 215 could potentially support building a national gun registry despite Congress’s expressed disapproval and the Second Amendment. This view is beyond anything Congress ever intended and must be reined in.
In the brief filed in federal court by the NRA it is argued that the National Security Agency's database of phone records amounts to a "national gun registry: "It would be absurd to think that the Congress would adopt and maintain a web of statutes intended to protect against the creation of a national gun registry, while simultaneously authorizing the FBI and the NSA to gather records that could effectively create just such a registry."
The NSA has claimed that it only "queries" the database a limited number of times for specific national security reasons and that Congress authorized phone data surveillance with Section 215 of the Patriot Act, which allows for the collection of business records "relevant" to terrorism.
On August 9, the Obama administration released a previously secret legal interpretation of the Patriot Act that it used to defend the bulk collection of Americans' phone records. The dubious reasoning in the 22-page memo is, in Sensenbrenner's opinion, one of the strongest arguments for transparency in government and he cites the late Supreme Court Justice Louis Brandeis who wrote that, "sunlight is said to be the best of disinfectants."
The NSA failed to report the privacy violations which represent a significant infringement of constitutional rights. Sensenbrenner contends that beyond these blatant violations, the foundation of the programs is itself illegal:
“Section 215 of the Patriot Act authorizes the collection of certain business records — in this case, phone records — when there are reasonable grounds to believe that the records are relevant to an authorized investigation into international terrorism. The key legal term is 'relevance'.
Under this relevance standard, the administration has collected the details of every call made by every American, even though the overwhelming majority of these calls have nothing to do with terrorism. Since first learning of the program this spring, I have been a vocal critic of such dragnet collection as a gross invasion of privacy and a violation of Section 215.
The administration's memo begins by acknowledging that its interpretation of the statute is at odds with the plain meaning of 'relevance'. It argues there is a 'particularized legal meaning' of relevance, but it ultimately concedes that it fails to meet this standard as well.”
Important to gun rights advocates, the NRA, In its filing, argues that the NSA's database would allow the government to identify and track gun owners based on whether they've called gun stores, shooting ranges or the NRA. "It would be absurd to think that the Congress would adopt and maintain a web of statutes intended to protect against the creation of a national gun registry, while simultaneously authorizing the FBI and the NSA to gather records that could effectively create just such a registry," the NRA wrote.
It is pointed out that Congress would never have intended to authorize such widespread surveillance since it had repeatedly rejected proposals to create a national gun registry. The lawsuit also states that the phone record program violates its members' First Amendment rights to associate and communicate freely because people may fear retribution for associating with the NRA if they knew the government was monitoring its phone records.
The arguments to the contrary are far from compelling. The Obama administration's explanation is that all of our phone records are broadly relevant because potential connections between the individual data points are of value. So, it's the needle in the haystack metaphor again, which purports that the haystack is needed in order to find the terrorism needle.
Sensenbrenner writes: “But our private connections contained in the bulk data are only of value if they in some way relate to terrorism. To the extent they don't, the government has no right to collect them. The government may need the haystack to find the needle, but gathering the haystack without knowledge that it contains the needle is precisely what the relevance standard and Section 215 are supposed to prevent.”
Although the secret FISA court has gone along with this, historically no public court has ever upheld document collection that is anywhere close to this current level.
Sensenbrenner accuses the administration of misinterpreting the law and of ultimately threatening Americans' First, Second and Fourth Amendment rights. “Congress never intended this. I will rein in the abuse of both the Patriot Act and the U.S. Constitution with the support of the American public.”