Rushed Debate on Federal Spying Powers, CATO Institute, six minute video posted as "FISA: The Movie!" on the Association of Research Libraries "Policy Notes" site. A nice summary of the Foreign Intelligence Surveillance Act (FISA) domestic spying "debate" and re-authorization over the holidays.
Newspaper sues government to reveal 'secret' Patriot Act interpretation, By Zack Whittaker, ZDNet (October 12, 2011).
The New York Times is suing the U.S. government for refusing to divulge how its law enforcement interprets the Patriot Act.
After a series of Freedom of Information requests were declined to reveal the classified interpretation of the Patriot Act -- a description that Senators Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) described as "deeply disturbing" -- the newspaper sought to battle it out in the courts.
Some months ago, it was found that the Patriot Act was being interpreted by government departments in a way to aid their ongoing investigations, leading to calls that there was a "classified" element to the counter-terrorism law.
Sen. Ron Wyden (D-Oregon) says that the government applies a broad legal interpretation of certain provisions of the "P.A.T.R.I.O.T Act" and has classified that interpretation so that it cannot be publicly assessed or challenged.
- There’s a Secret Patriot Act, Senator Says, By Spencer Ackerman, Wired (May 25, 2011).
Wyden says he "can't answer" any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information -- something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.
- The Secret PATRIOT Act and the End of Limited Government in America, by E.D. Kain, Forbes (May 26, 2011).
Apologists for the PATRIOT Act have claimed that the innocent have nothing to fear from the government’s broadened powers.
At isssue is the so-called "business-records provision" of the Act (Section 215) which empowers the FBI to get businesses, including libraries, to turn over records it deems relevant to a security investigation.
Sen. Wyden Decries “Secret Law” on PATRIOT Act, by Steven Aftergood, Secrecy News (May 25th, 2011)
"We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used," Sen. Wyden said. "But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means."
But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.
Secret Laws are laws that citizens and even Congress do not know about or are forbidden from seeing.
A recent Senate hearing examines how these "laws" become law and why they are 'repugnant' and 'an abomination.'
The official page for the hearing with links to written testimony and a video of hearing: Secret Law and the Threat to Democratic and Accountable Government, Hearing, Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Property Rights, April 30, 2008.
A brief overview of the hearing by Steven Aftergood with links his and others' to testimony: Secret Law Debated in Senate Hearing, by Steven Aftergood, Secrecy News, April 30, 2008.
A concise op-ed by Senator Russ Feingold about secret laws: Government in secret, By Russ Feingold, Los Angeles Times, May 8, 2008.
Can you be required to comply with a government policy or law that is itself secret?
Although we are not allowed to see the law in question, at least we can see the court documents and amicus curiae briefs filed in the court case challenging this situation. See:
- Confronting Secret Law by Steven Aftergood, Secrecy News (November 15, 2006).
Surely, I thought, they're not proposing passing a secret law. Surely they're not going to say that the citizenry isn't allowed to know what's in the law that Congress is considering.
[but it turns out] ...I can know the contents of the bill Congress is debating, but only if I pay $10k to a private party, and only if I promise not to tell anybody what is in the bill or engage in public debate about it.
Which brings us to the most interesting question of all: Are the members of Congress themselves, and their staffers, allowed to see the spec and talk about it openly? Are they allowed to consult experts for advice? Or are the full contents of this bill secret even from the lawmakers who are considering it?
We've seen this before. Laws that are copyrighted or considered the property of a private company. (One comment to the Felten post above says that it is it's perfectly acceptable for the law to be private intellectual property in forty-seven states.)
But this is worse. Felten says of a proposed law to "plug the analog hole":
"This is much worse than a claim of copyright. Copyright doesn't stop you from talking about what is in the document, or from rephrasing it in your own words. A copyrighted law can at least be debated. Here, they're claiming the (proposed) law is a trade secret and cannot be discussed at all."
What are the implications? There are at least two: First, treatment of a bill as being proprietary could become a precedent for even more private control of what should be public information leading to even less access to information and even less government accountability. Second, the law itself deals with "a fundamental vulnerability in copy prevention schemes" (see: the analog hole WikiPedia) in a way that would effect the functionality of all hardware for all purposes -- even legal copying of public information (say files downloaded from govt. agencies) could, potentially, be disabled because of this.