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Government Confirms That It Has Secret Interpretation of Patriot Act Spy Powers

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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March 16, 2012

The government has just officially confirmed what we’ve long suspected: there are secret Justice Department opinions about the Patriot Act’s Section 215, which allows the government to get secret orders from a special surveillance court (the FISA Court) requiring Internet service providers and other companies to turn over “any tangible things.” Just exactly what the government thinks that phrase means remains to be seen, but there are indications that their take on it is very broad.

Late last night we received the first batch of documents from the government in response to our Freedom of Information Act request for any files on its legal interpretation of Section 215. The release coincided with the latest in a string of strong warnings from two senators about how the government has secretly interpreted the law. According to them both, the interpretation would shock not just ordinary Americans, but even their fellow lawmakers not on the intelligence committees.

Although we’re still reviewing the documents, we’re not holding our breath for any meaningful explanation from the government about its secret take on the Patriot Act. We do know now that there are two memos from the Office of Legal Counsel (the same Justice Department group that issued the torture memos) relating to Section 215. But as has become a routine practice for the Justice Department, the OLC is keeping those memos entirely secret.

This secrecy is overbroad and unnecessary. Americans have a right to know how their government is interpreting public laws, especially when those laws give the government sweeping authority to collect more and more of our personal and private information.

Stay tuned.

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