For the past few years Sen. Ron Wyden (D-OR) has been asking appropriate officials about yet another Bush-era secret Justice Department opinion relating to surveillance on American citizens that was not authorized by the law and is likely still in effect. Long before the Snowden documents proved that the National Security Administration was sucking up all Americans' cell phone data, Wyden was warning the public that it was happening, just not in specifics since that would have been a violation of the law because it was classified information.

This time his warning is about surveillance in the name of cybersecurity. With the latest cybersecurity bill—the Cybersecurity Information Sharing Act (CISA)—now on the Senate floor, TechDirt has some good advice: "Reminder: When Ron Wyden Says There's A Secret Interpretation Of A Law, Everyone Should Pay Attention."



Recently released papers from the Snowden archives have made it clear why he's saying this, because it showed that, contrary to what's been said in the past, the NSA is using "cyber signatures" to sniff through upstream collections (their taps into the fiber backbone) under Section 702 of the FISA Amendments Act. And this opens up the information collected to so-called "back door" or "incidental" searches by the NSA. The whole point of CISA is to actually encourage companies to give the government more such "cyber signatures" which they can use to monitor the internet. However, there's likely more going on as well, and in particular, Senator Wyden has been strongly hinting about an important Justice Department memo that remains classified, but which he implies would change the debate.

Again, Wyden can't be specific because he can't release classified information. But in his dissent in committee against the CISA bill, he wrote "I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public. […] This opinion, which interprets common commercial service agreements, is inconsistent with the public's understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch."

The memo dates from 2003, at the same time the Bush administration was coming up with all its dubious legal justifications for warrantless wiretapping of America as well as for torture. Yeah, maybe that's something that Congress should spend some time looking into before it passes more sweeping surveillance legislation.