Wyden and Udall Call for Informed Debate of Domestic Surveillance Law

Senators Ask for Unclassified Explanation of the Government’s Geolocation Collection Authority and Details on FISA Amendments Act Interpretations

Washington, D.C. – Congress has until late 2012 to extend the FISA Amendments Act of 2008’s expiring new authorities and U.S. Senators Ron Wyden (D-Ore.) and Mark Udall (D-Col.) say Congress should use the time to thoroughly consider how the law has been interpreted and implemented. 

In a letter to the Director of National Intelligence, Wyden and Udall -- both members of the U.S. Senate Select Committee on Intelligence – state: “We believe that the debate over these initiatives will be better informed if Congress and the public are provided with more unclassified information about how these initiatives will affect current intelligence authorities and activities.” 

The letter goes on to request unclassified information on issues that will likely be of concern in the debate to extend the FISA Amendments Act, such as: follow-up on the Office of Management and Budget’s 2007 statement that it would “likely be impossible” to count the number of people whose communications were reviewed by government agents; recurring violations of the FISA Amendments Act and answers to questions about whether or not the law has been used to collect communications of law abiding Americans.  The Senators, who earlier this year called for the declassification of secret interpretations of the Patriot Act, also asked if any significant interpretations of the FISA Amendments Act have been classified.

The Senators also asked for information on another increasingly talked about area of surveillance law involving the use of geolocation data.  Taking into account recent advances in geolocation technology, the increasing ease in secret tracking capabilities of individuals on an ongoing, 24/7 basis and law enforcement’s utilization of this technology, Wyden and Udall identified conflicting judicial rulings on the legality of the government surreptitiously tracking an individual’s movements using a mobile electronic device.  “Congress,” they write, “is now considering multiple legislative proposals that would attempt to establish clear rules for this sort of surveillance and will need to determine at some point whether it is necessary to update the laws that apply to intelligence investigations as well as the laws that apply to law enforcement investigations.”

Wyden and Udall note that while substantial data exists on how law enforcement is interpreting its authority to use geolocation data, Congress will also need to understand how intelligence authorities are being interpreted.  This, they say, includes knowing whether or not government agencies believe they have the authority to collect geolocation information on American citizens for intelligence purposes.

The full text of the letter is below (click to download PDF):

July 14, 2011

The Honorable James R. Clapper, Jr.

Director of National Intelligence

Washington, DC  20511

Dear Director Clapper:

In the coming months Congress is likely to consider various legislative initiatives that would modify different aspects of domestic surveillance law.  We believe that the debate over these initiatives will be better informed if Congress and the public are provided with more unclassified information about how these initiatives will affect current intelligence authorities and activities.   

The FISA Amendments Act of 2008 significantly modified the US government’s surveillance authorities with regard to individuals believed to be located outside the United States.  These new authorities are currently scheduled to expire in late 2012, and Congress could begin considering possible extensions or revisions to these authorities later this year.  Since any thorough consideration will require an understanding of how the FISA Amendments Act has been interpreted and implemented, we ask that you provide unclassified answers to the following questions: 

  • In a December 2007 Statement of Administration Policy on the FISA Amendments Act, the Office of Management and Budget said that it would “likely be impossible” to count the number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act.  Is this still the case?  If so, is it possible to estimate this number with any accuracy? 
  • Official documents released in 2010 noted that there have been multiple incidents in which intelligence agency personnel have failed to comply with the FISA Amendments Act, and that “Certain types of compliance incidents continue[d] to occur.”  Please elaborate on these compliance incidents to the extent possible, and explain why you believe that they have continued to recur. 
  • Have any apparently law-abiding Americans had their communications collected by the government pursuant to the FISA Amendments Act? 
  • Are any significant interpretations of the FISA Amendments Act currently classified? 

Turning to another area of surveillance law, recent advances in geolocation technology have made it increasingly easy to secretly track the movements and whereabouts of individual Americans on an ongoing, 24/7 basis.  Law enforcement agencies have relied on a variety of different methods to conduct this sort of electronic surveillance, including the acquisition of cell phone mobility data from communications companies as well as the use of tracking devices covertly installed by the law enforcement agencies themselves. 

Unfortunately, the law has not kept up with these advances in technology.  As a result, courts in different jurisdictions have issued diverse, conflicting rulings about the evidence and procedures required for the government to surreptitiously track an individual’s movements using a mobile electronic device.  Congress is now considering multiple legislative proposals that would attempt to establish clear rules for this sort of surveillance and will need to determine at some point whether it is necessary to update the laws that apply to intelligence investigations as well as the laws that apply to law enforcement investigations. 

While there is a substantial amount of public information available regarding different interpretations of this area of the law (including the executive branch’s interpretation and the interpretations of various courts) all of these interpretations apply to law enforcement authorities, not intelligence authorities.  Clearly Congress needs to also understand how intelligence authorities are being interpreted as it begins to consider legislation on this issue.  For this reason, we request that you also provide unclassified answers to the following questions: 

  • Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?
  • If yes, please explain the specific statutory basis for this authority.  And to the extent that this statutory basis imposes any procedural requirements, such as judicial review or approval by particular officials, please describe these requirements. 
  • If no, please explain the statutory basis for this prohibition. 

Thank you for your attention to this matter.  We look forward to your prompt response.   

Sincerely,

Ron Wyden                                                                 Mark Udall

United States Senator                                                 United States Senator