Secret rulings, by secret courts, lead to secret interpretations of the Section 215 provision of the so-called "Patriot" Act.
This May, the provision, along with two other controversial provisions, was extended until 2015. During the reauthorization "debate" Senators Wyden and Mark Udall warned about a "Secret 'Patriot' Act," or rather a secret interpretation of the law that kept Americans unaware as to how the law was actually being enforced.
Senators Wyden and Udall appeared as if they would join Senator Paul in blocking reauthorization, but later backed down when Chairwoman of the Senate Select Committee on Intelligence, Diane Feinstein, promised them a hearing on the interpretation of the law.
For some time, speculation abounded that the secret interpretation had to do with large scale geolocation tracking of Americans through cell phone data. Cato's Julian Sanchez wrote about it at the time, and since then, more evidence tends to shine a light that it is indeed what the government is using Section 215 for.
In a recent post, Sanchez dissects a letter written to the DOJ from Udall and Wyden bashing them for deliberately misleading the public through public statements about the interpretation of the Sec. 215 provision.
The letter focuses particularly on “highly misleading” statements by Justice Department officials analogizing Section 215 powers to grand jury subpoenas. “As you know,” Wyden and Udall write, “Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.”
But given the quantity of evidence that already suggests the “Secret Patriot Act” involves location tracking, I find it suggestive that the very short list of specific substantive limits on grand jury subpoena power in the U.S. Attorneys’ Manual includes this:
It is improper to utilize the grand jury solely as an investigative aid in the search for a fugitive in whose testimony the grand jury has no interest.
…locating subjects for the benefit of law enforcement (rather than as a means of securing their testimony before the grand jury) is one of the few things so expressly and specifically excluded. Could this be what Wyden and Udall are obliquely referring to?
It is indeed very likely.
In addition, we can observe that shortly after the reauthorization of the "Patriot" Act, Senator Ron Wyden, introduced a bill to put restrictions in place for when the government can and cannot engage in geolocation tracking.
In the bigger picture, this is just one problem, with one provision, of a law – created in fear – that strips Americans of the freedoms their forefathers fought for. Nevertheless, it's one that all Americans need to be aware of.