Senate Intel’s Secret Law Undermines What Law Is

​If you write legislation but refuse to tell the public what is in it, can it still be considered a law if enacted? Can public laws be redacted, with big black heavy marks through their central provisions?
 
The Senate Intelligence Committee thinks so.
 
These questions arise from a development that forces civil libertarians to look a gift horse in the mouth. Here’s the background: When Congress passed the reauthorization of Section 702 in April, it included an amendment from the House Intelligence Committee that would force “any provider” of a business service to warrantlessly hand over customer information from any electronic device that transmits data, such as routers or free WiFi. Any businessperson could be dragooned into this service and gagged for life to never reveal it.
 
The public outcry about turning your neighborhood Starbucks into a spying operation prompted legislators to exclude coffee shops, hotels, and community centers. But the amendment, adopted by the Senate, was still expansive enough to define gyms, office complexes, dentists, you name it, as “electronic service providers” covered by this law. Many civil libertarians worried that custodial services would be required to swipe data from servers at night. That may sound paranoid, but the law was expansive enough to allow that – and we’ve seen time and again, give the intelligence community an inch and they will take a continent. That’s why this law was quickly labeled the “Make Everyone a Spy” program.
 
Senate Intelligence Chairman Mark Warner won passage of this amendment only by pledging to his colleagues that his committee would narrow the scope of this provision to one intended sector that was the subject of secret opinions from the Foreign Intelligence Surveillance Court. Sen. Warner deserves great credit for keeping his word and acting on it with alacrity. It is widely believed on Capitol Hill that the legislation is aimed at data centers, not everyday businesses. But we cannot be sure because the new amendment’s new, narrowed definition of a category of covered electronic service provider is classified.
 
So, the good news: The Make Everyone a Spy law is being narrowed to a single category. The bad news: We don’t know what that means.
 
Such secret law is a dangerous practice that will lead to pernicious outcomes. If unchallenged, this precedent will be used by the champions of the intelligence community on Capitol Hill to insert a host of secret provisions. Combine secret law with secret opinions from the secret FISA court, and voilà, you have a complete Star Chamber legal system adjacent to the public one.
 
If this still seems hyperbolic, imagine what it would be like to be on the receiving end of a government request to produce customer information, without being presented with a warrant. Your lawyer can ask: Are we a covered entity within the government’s definition? Or is the government overreaching? There would be no answers to these questions because secret law short circuits due process.
 
If this provision is aimed at data centers, as surely the Russians, Chinese, Iranians, and North Koreans know from reading American media, why not reveal that fact? The best outcome would be for the Senate to strip out the secrecy and let us know who is and who is not covered by this law.