Sen. Udall urges review of Patriot Act

Revelations that the Obama administration sought and received a court order for data about domestic cellphone calls prompted U.S. Sen. Mark Udall, D-Colo., to call for a review of the Patriot Act.

U.S. Rep. Scott Tipton, R-Colo., called the disclosure “deeply troubling” as he joined colleagues asking the FBI and National Security Agency about the scope of the data-collection efforts.

The order issued by the Foreign Intelligence Surveillance Court required Verizon’s business-services division to turn over data on every single call through its system.

Udall, a member of the Senate Intelligence Committee, reiterated criticisms he made previously, saying that Americans would be surprised to learn the depth of the government’s surveillance activities.

In a statement that never used Obama’s name, Udall said American people “need to know how the president interprets his authorities under the PATRIOT Act, and I expect the president to uphold his commitment to transparency in the State of the Union address and his recent national-security speech.

“Once the American people understand how this law has been interpreted, I am certain they will join me in pushing to immediately change it.”

Gathering millions of records of American citizens who haven’t been accused of any crimes is an “overreach of power, violation of rights and infringement of privacy,” Tipton said in a statement that included several questions about whether other telecommunications companies received similar orders, how many Americans have been affected and information about the agencies’ legal reasoning.



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While the Daily Sentinel should be applauded for its editorial defense of citizens’ right to privacy (“DNA ruling weakens Fourth Amendment”) and for reporting on parallel threats thereto (“Phone-records monitoring cast wide net”; “Sen. Udall urges review of Patriot Act”), its reliance on Justice Scalia’s dubious minority dissent is problematic.

Scalia frequently masks weaknesses in his own arguments by ridiculing those of others (e.g. “taxes the credulity of the credulous”).  In Heller, Scalia dismissed as “bordering on the frivolous” the argument that the Second Amendment protected only “arms” familiar to the Founders.  However, perhaps even more fantastical is Scalia’s implied contention that – had those Founders known about or collectively anticipated the proliferation and lethality of contemporary “personal” firearms – they would nonetheless have worded the Second Amendment no differently. 

As the Sentinel expressly acknowledged – but contrary to Scalia’s dissenting assertion—the Fourth Amendment is by no means “categorical and without exception”, but rather explicitly prohibits only “unreasonable searches and seizures”.  Thus, the legal questions were whether DNA cheek swabs are dispositively less “reasonable” than fingerprints and photographs taken at booking incident to any lawful arrest – whether or not justified, and whether such identifiers, once legally taken, can lawfully be used to solve other crimes.

A similar analysis applies to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), the USA Patriot Act of 2001, and the Protect America Act (FISA Amendments) of 2007.  Thus far, only the Patriot Act’s “National Security Letter” subpoenas have been declared unconstitutional – because they did not permit judicial review if challenged – but what was considered “reasonable” immediately after 9/11 may no longer be.

Indeed, while the facial constitutionality of FISA has been consistently upheld, recent revelations may support an “as applied” challenge to its “business records” provisions. 

Meanwhile, the Constitution itself remains completely silent as to “privacy”.

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