Saturday, May 18, 2013
by Dave Mitchell
When one power is constrained (or simply not broad enough), interpret other powers to be unrealistically and shockingly expansive and shield that interpretation from public scrutiny…at least that’s what the FBI would tell you.
The FBI’s annual report on its use of spying powers released late last month reveals a meteoric 900% rise in the use of Section 215 of the PATRIOT Act under the Obama Administration (see graphic). This provision, reauthorized in 2011, allows the FBI to force unwilling businesses to hand over “any tangible things” simply upon showing the closed-door Foreign Intelligence Surveillance Courts (FISA court) that they are “relevant” to an “authorized investigation” into “international terrorism or clandestine intelligence activities.” In a break with foundational Fourth Amendment principles, the person whose “tangible things” are sought need not be suspected of any criminal activity themselves. The FBI merely must show the FISA court that those “things” sought are “relevant” to an investigation into international terrorism.
So just how broad is this power?
A few courageous senators in the know have hinted that Americans would be “stunned” by the scope of the spy powers claimed under Section 215; the only problem is the government has kept this interpretation secret. Not only does this lack of transparency prevent public discourse on what the limits of the government’s powers should be, it also drips with irony under a president that denounced such broad powers as a “fishing expedition” while in the Senate.
There seem to be two candidates under which the Obama administration could argue for expansive powers under Section 215. A broader definition of either “relevant” or of “tangible things” would balloon the government’s surveillance powers claimed under this law. The former would allow searches and seizures for information more and more tenuously related to international terrorism while the latter potentially could expand covered “things” to include email, Internet browsing history, and cell phone records (none of which were included explicitly in the statute).