ANNOUNCEMENT: Former Sen. Mark Udall and Former House Chairman Bob Goodlatte Challenge Government’s Secrecy Around Claims of “Inherent Authority” to Conduct Mass Domestic Surveillance

FOR IMMEDIATE RELEASE                                            

WASHINGTON – Former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA) are leading an effort by Demand Progress Education Fund (DPEF) and the Project for Privacy and Surveillance Accountability (PPSA) to compel the government to come clean about the legal basis for mass domestic surveillance of Americans in the absence of Congressional authorization.
 
“Our request follows months of efforts by Members of Congress and civil liberties organizations to get the government to explain on what authority the government bases domestic surveillance of U.S. persons,” said Bob Goodlatte, senior policy advisor to PPSA who joined with former Sen. Mark Udall to add their names to the Freedom of Information Act (FOIA) request submitted today to the Department of Justice, FBI and other agencies.
 
Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act), governed the warrantless surveillance of a wide range of personal information held by businesses. To acquire such sensitive records, all the FBI had to do was assert the data sought was relevant to a foreign intelligence investigation. With the expiration of Section 215 on March 15, Members of Congress and civil liberties organizations want to know the current legal basis for government surveillance.
 
“Those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans,” Goodlatte said. “Our FOIA request is intended to learn if that is in fact what is happening.”
 
Among the categories of information the DPEF/PPSA FOIA request asks for:

• Are the legal theories that previous administrations relied on to secretly conduct mass domestic surveillance of people in the United States still operative?
• Has the government been hiding dragnet surveillance of online activity by exploiting a statutory loophole?
• 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?

 
“Despite decades of abuse and debate around domestic spying, the government is still refusing to be forthright with Congress and the public about the scope of its surveillance activities following the expiration of Section 215,” said former Senator Mark Udall, who served on the Senate Select Committee on Intelligence. “If the government has secretly decided that it may lawfully spy on Americans without Congressional authorization or oversight, it must not hide that legal conclusion or its reach. What could be at stake impacts the privacy of every person in the United States. We are filing this FOIA request on behalf of the people's right to know."
 
“Companies hold enormous and growing databases on every single person in the United States,” Goodlatte said. “The American people deserve to know if those records are being accessed without Congressional authorization or judicial due process.”
 
DPEF educates our 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 DNI and AG raising concerns, asking a number of critical questions, and concluding such reliance on inherent executive authority 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; and
• Dozens of Representatives, led by Reps. Davidson (R-OH) and Jayapal (D-WA), further advanced these questions in a letter demanding answers in September.

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.
 
Additional context is available here (https://s3.amazonaws.com/demandprogress/documents/Additional_background_on_Udall_Goodlatte_DPEF_PPSA_FOIA.pdf).
 
Additional background on Section 215 is available at www.Section215.org.

Contact

Sean Vitka, Senior Policy Counsel at Demand Progress Education Fund: sean@demandprogress.org; ‪(570) 798-7678

Gene Schaerr, General Counsel at Project for Privacy and Surveillance Accountability: gschaerr@schaerr-jaffe.com; (202) 787-1060