The Intelligence Community Took Months to Respond to a Key Question About Section 215, And It Still Doesn’t Have Any “Legal Conclusion”

Even with the looming expiration of Section 215 and other key provisions of the Patriot Act, it took the Intelligence Community almost four months to respond to a letter written by Senator Ron Wyden (D-Oregon) seeking clarification on how the Intelligence Community interprets the landmark Supreme Court decision in Carpenter v. United States and whether it is using Section 215 to collect Americans’ location data.

Wyden’s concerns were entirely justified. We know that the NSA has used Section 215 to collect cell phone location data in the past. But last year in Carpenter, the Supreme Court held that police violated the Fourth Amendment when they collected days of cell site location information about a robbery suspect without a warrant. In his letter, Senator Wyden noted that he and other senators had repeatedly asked others in the government what it saw as Carpenter’s effects on the intelligence community, but hadn’t gotten any answers. Indeed, EFF, ACLU, and others have been asking these same questions. “If Congress is to reauthorize Section 215 before it expires in December,” Wyden wrote, “it needs to know how this law is being interpreted now, as well as how it could be interpreted in the future.”

Senator Wyden sent that letter to the then-Director of National Intelligence (DNI) Dan Coats on July 30, and then he waited. And waited. And waited.

Now, we finally have a response. Unfortunately, it’s not a very satisfying one. In his November 14 response, Assistant DNI Benjamin Fallon wrote that although the DOJ and ODNI have not used Section 215 to collect location data since Carpenter was decided, they had not “reached a legal conclusion” about whether they were authorized to do so.

We recognize this belated nonanswer for what it is—a signal that the intelligence community is not taking its duties of transparency and oversight seriously. Carpenter may be the most important privacy decision from the Supreme Court in a generation, and it should have clear and immediate impact on any warrantless collection of location data as part of criminal investigations and intelligence activities alike. And even if lawyers for the intelligence community read the case differently, they should be able to reach a “legal conclusion” eighteen months after it was decided.

Congress and the public deserve to see these legal conclusions, especially given the NSA’s track record of reaching secret interpretations of Section 215 that crumble under scrutiny by courts. Moreover, waiting this much time only to reveal such paltry information about how these far-reaching surveillance programs function is unacceptable. Politics takes time. Legislation takes time. And to leave these types of answers until the last-minute shows how little regard the Intelligence Community has for Congressional oversight of their invasive surveillance programs.

Now, a 90-day reauthorization of Section 215 and other provisions of the Patriot Act is being shoved into a continuing resolution to fund the government. This tactic will no doubt be touted as a necessity because of the short timespan before the December 15 sunset. The government might not be feeling the pinch, of course, if it took this more seriously and engaged in even the most basic transparency.

Now that we have ODNI’s paltry response to Senator Wyden’s question, it is even more important that Congress pass Section 215 legislation that includes clarification that the law cannot be used to collect location information. Simply put, Congress and the Intelligence Community cannot put off reckoning with Section 215 indefinitely. EFF and others have been pushing for significant reforms to the law—including codifying Carpenter’s effect—and we will fight just as hard as the new sunset date approaches.