Former Sen. Udall and House Judiciary Chairman Bob Goodlatte Support Lawsuit to Reveal Details of Government’s Secret Mass Surveillance

WASHINGTON – Former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA) are supporting a lawsuit by Demand Progress Education Fund (DPEF) and the Project for Privacy and Surveillance Accountability (PPSA) filed against the Department of Justice in the U.S. District Court for the District of Columbia. These two civil liberties organizations seek to compel the government to disclose whether it has secretly concluded it may conduct mass surveillance of people in the United States in the absence of Congressional authorization or court order. This weekend, the two former members of Congress also published an op-ed about this issue.

“In October, Mark and I added our names to a Freedom of Information Act (FOIA) request to the Department of Justice, the FBI and other agencies asking for information about possible mass surveillance of American citizens,” said Bob Goodlatte, senior policy advisor to PPSA. “They did not bother to reply. So Demand Progress Education Fund and PPSA are going to court to get answers to our questions.”

The state of domestic intelligence surveillance is unclear with the expiration of Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act). Section 215 governed the surveillance of a wide range of personal information held by businesses with an elastic standard: If the FBI asserted such data was relevant to a foreign intelligence investigation, it did not need a warrant to access it.

“What legal authority governs surveillance today?” Goodlatte asked. “The truth is, not even Congress is allowed to know. We do know that those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans.”

A fulsome response to the underlying DPEF/PPSA FOIA request (available here) would answer the following questions:

  • Are the legal theories that previous administrations relied on to secretly conduct mass domestic surveillance of people in the United States still operative?
    • One authority cited for this proposition by then-Chairman of the Senate Intelligence Committee Richard Burr (R-NC), Executive Order 12333, is not a statute. What guidance is the government giving agencies on the limits of 12333?
  • Is the government treating Americans’ web browsing information as presumptively foreign, thereby avoiding privacy protections for people in the United States?
  • Is the government relying on a legal theory – as it did at least from 2001 through 2004 – that its inherent authority displaces the rules of the Foreign Intelligence Surveillance Act when the two conflict?
  • Has the government secretly concluded that it may purchase information about people in the United States, for instance the enormous and growing troves held by data brokers, with no Congressional or judicial oversight?

“In December, the public learned that the whole time the DOJ and FBI were urging Congress to reauthorize the Patriot Act, more was at stake than even members of Congress knew,” said former Senator Mark Udall, who served on the Senate Select Committee on Intelligence. “And since the partial Patriot Act sunset one year ago, the public also learned that the government has been secretly buying records about people in the United States without any Congressional authorization or judicial due process. This dangerous shell game of domestic mass surveillance must stop long enough for Congress to have its say: the stakes impact the privacy of every person in the United States.”

“Every American is already concerned about the potential for misuse of the massive amounts of our data held by businesses, and clearly the problem is getting worse,” Goodlatte said. “The American people deserve to know if our records are being accessed without Congressional authorization or judicial due process.”
DPEF educates more than two million members and the general public about matters pertaining to the democratic nature of our nation’s communications infrastructure and governance structures. PPSA is a nonpartisan group of U.S. citizens who advocate for greater protection of our privacy and civil liberties in government surveillance programs.

Background on the Issue

  • A civil liberties coalition called for transparency in May;
  • Sens. Leahy (D-VT) and Lee (R-UT) sent a letter in July to the AG and DNI raising concerns, asking a number of critical questions, and concluding reliance on inherent executive authority in lieu of Section 215 would be “plainly illegal”;
  • Rep. Lofgren (D-CA) asked related questions of Attorney General Barr at a hearing in July;
  • A coalition further honed this fact-finding mission and thoroughly substantiated these concerns in August;
  • Dozens of Representatives, led by Reps. Davidson (R-OH) and Jayapal (D-WA), further advanced these questions in a letter demanding answers in September; and
  • In December, Charlie Savage of The New York Times broke the story that the government had secretly interpreted Section 215 of the Patriot Act as empowering the FBI to put a warrantless dragnet around a website. As Sen. Ron Wyden (D-OR) noted, there is no guarantee the FBI or NSA “wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future.”

The government has missed the relevant deadlines and refused to provide answers in every case.

In August, Rep. Eshoo (D-CA) also demanded information about what surveillance of the legislative and judicial branches has occurred. After being refused a substantive answer, she called on the Inspector General of the Intelligence Community to investigate the issue. Similarly, Reps. Eshoo and Rush (D-IL) and Senator Wyden (D-OR) just called on the Privacy and Civil Liberties Oversight Board to investigate executive branch surveillance of protesters.

The FOIA request is available here.
Additional context is available here.
Additional background on Section 215 is available at www.Section215.org.

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