In a First, Government Acknowledges the Limits of Section 215

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EFF.orgFol­low­ing EFF’s vic­to­ry in a four-year Free­dom of Infor­ma­tion Act law­suit, the gov­ern­ment released an opin­ion (pdf), writ­ten by the Office of Legal Coun­sel (OLC) in 2010, that con­clud­ed that Sec­tion 215—the pro­vi­sion of the Patri­ot Act the NSA relies on to col­lect mil­lions of Amer­i­cans’ phone records—does have a lim­it: cen­sus data.

The Com­merce Depart­ment request­ed an OLC opin­ion on whether any pro­vi­sions of the Patri­ot Act could over­ride the pri­va­cy require­ments of the Cen­sus Act, pro­vi­sions which, as the opin­ion acknowl­edges, “have long pro­vid­ed assur­ances of con­fi­den­tial­i­ty to” cen­sus par­tic­i­pants. The opin­ion con­trasts the “broad author­i­ty” and “sub­stan­tial new pow­ers” pro­vid­ed by Sec­tion 215 with the “long his­to­ry of con­gres­sion­al enact­ments pro­vid­ing broad con­fi­den­tial­i­ty pro­tec­tion to cen­sus infor­ma­tion.” Ulti­mate­ly, OLC con­clud­ed that “sec­tion 215 should not be con­strued to repeal oth­er­wise applic­a­ble Cen­sus Act pro­tec­tions for cov­ered cen­sus infor­ma­tion” and that the “Patri­ot Act, as amend­ed, does not alter the con­fi­den­tial­i­ty” of cen­sus data.

That, how­ev­er, was not the view of Depart­ment of Justice’s Nation­al Secu­ri­ty Divi­sion (NSD). As the opin­ion notes, the Nation­al Secu­ri­ty Divi­sion “dis­agreed, con­tend­ing that sec­tion 215 … may allow for a court order to com­pel the Sec­re­tary [of Com­merce] to dis­close fur­nished cen­sus infor­ma­tion.” Impor­tant­ly, the Nation­al Secu­ri­ty Divi­sion is the divi­sion of DOJ that rep­re­sents the gov­ern­ment in cas­es before the For­eign Intel­li­gence Sur­veil­lance Court (FISC), the secret court that over­sees much of the government’s domes­tic spy­ing oper­a­tions. Thanks to dis­clo­sures in EFF’s law­suit, we know that NSD ulti­mate­ly cit­ed and relied on this opin­ion in pro­ceed­ings before the FISC. That appli­ca­tion, how­ev­er, remains secret.

For­tu­nate­ly, and as EFF has long argued, the opin­ions of the OLC are the law of the exec­u­tive branch. So, even if attor­neys in the Nation­al Secu­ri­ty Divi­sion dis­agreed with OLC’s con­clu­sions, they were oblig­at­ed to fol­low it. The judge in EFF’s FOIA case, who reviewed the government’s appli­ca­tion to the FISC that relied on the opin­ion, acknowl­edged as much in her opin­ion (pdf): “The Court’s in cam­era review con­firms that DOJ cit­ed the Cen­sus Mem­o­ran­dum in an appli­ca­tion to the FISC, ref­er­enc­ing it as DOJ’s legal posi­tion on the cen­sus-relat­ed issues there­in, and con­trast­ing it with oth­er legal issues argued in the appli­ca­tion. DOJ offered the Cen­sus Mem­o­ran­dum as a state­ment of the law to bol­ster its legal argu­ments con­cern­ing mat­ters unre­lat­ed to the sub­ject of the Cen­sus Mem­o­ran­dum itself.”

The fed­er­al gov­ern­ment has a sad his­to­ry of using cen­sus data to tar­get polit­i­cal­ly vul­ner­a­ble groups, but we’re pleased that the exec­u­tive branch, in this opin­ion, has rec­og­nized the impor­tant pri­va­cy pro­tec­tions Con­gress has estab­lished for cen­sus data. We’re also pleased that the gov­ern­ment, for once, has acknowl­edged Sec­tion 215 has its lim­its. But it shouldn’t have tak­en a four-year court bat­tle for the pub­lic to know what the gov­ern­ment thinks the law is. We’ll keep fight­ing against secret sur­veil­lance law and for the public’s right to know.


Relat­ed Cases
Sec­tion 215 of the USA PATRIOT Act