Udall: Quit collecting Americans’ phone records

National security officials should immediately halt the bulk collection of Americans’ telephone records, U.S. Sen. Mark Udall, D-Colo., said Tuesday.

Udall called on President Barack Obama and Congress to narrow the reach of Section 215 of the Patriot Act, which has been used to allow federal agencies to collect phone records.

“I believe it is time to end the bulk collection program as we know it,” Udall said on the floor of the Senate.

Rulings by the Foreign Intelligence Surveillance court allowing the bulk collection of domestic phone records “is at odds with the plain meaning of the law,” Udall said.

Sen. Ron Wyden, D-Ore., who has worked with Udall to raise questions about the conduct of the bulk-collection program, said the debate on the reach of the program “should have been started by elected officials and not a government contractor.”

Wyden was referring to Edward Snowden, a contractor with the National Security Agency, who leaked documents about the reach of the program before fleeing first to Hong Kong and then to Moscow, where he has applied for asylum.

Udall invoked the Fourth Amendment protections against illegal search and seizure as “the biggest, baddest weapon we have,” to prevent inappropriate and unnecessary intrusions into Americans’ privacy.

He also questioned, as he has before, the value of the program, saying that intelligence officials’ claims about the contributions of the program are “misleading.”

“There is no evidence that bulk phone records alone played a meaningful, if any, role” in disrupting 54 terror plots, Udall said.

It is possible to give security officials the ability to find information critical to national security without compromising individuals’ privacy, he said.

“It’s possible to have privacy and security,” Udall said, “and we aren’t getting enough of either.”


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Our senior Senator may be correct—“Udall:  Quit collecting Americans’ phone records”—that it’s time to “narrow the reach of Section 215 of the Patriot Act”.

However, even if controlling (albeit still secret) Foreign Intelligence Surveillance Act (“FISA”) court interpretations of that provision are arguably “at odds with the plain meaning of the law”, NSA activities seem clearly consistent with the plain text of the Patriot Act (2003).

Section 215 amended FISA (1978) by inserting Section 501, “Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations”, authorizing the FBI to seek “business records” from their custodians by making application to a FISA court and specifying (not proving) only that the records “are sought for an authorized investigation conducted in accordance with” guidelines approved by the Attorney General “to protect against international terrorism or clandestine intelligence activities”.

Records of every telephone call made (but not their contents) are “business records” routinely maintained by telephone companies, and – when an identifiable individual is party thereto – are lawfully provided to law enforcement only pursuant to a subpoena.

FISA judges have apparently ruled that NSA collection and consolidation in a searchable database of impersonal “meta-data” – multiple telephone companies’ call logs, which do not identify any individuals involved – constitutes a legitimate investigative and/or lead-generating tool which can reasonably contribute to national security.

Because our Constitution does not explicitly guarantee a right of “privacy”, and because the Fourth Amendment prohibits only “unreasonable searches and seizures”, the question boils down to:  who decides what is currently “reasonable?

Thus, AG Holder could modify applicable “guidelines”, Congress could enact clarifying language, or a FISA court could conclude that – with secrecy lost and disposable cell- phones plentiful – massive collection of “meta-data” is no longer a “reasonable” way to deter or “protect against international terrorism or clandestine intelligence activities”.

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