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After two decades in the Senate, privacy hawk Ron Wyden is still going strong.
When Ron Wyden arrived in the U.S. Senate in 1996, he was determined to focus on more than just trees.
In the mid-1990s, Oregon, Wyden’s home state, was best known for environmental industries, like forestry. But Wyden, a Democrat who had just won a special Senate election after serving eight terms in the House, wanted to expand his portfolio.
“I said, ‘I am gonna be a fierce advocate for Oregon’s resource-dependent communities and jobs in forestry,’” Wyden told the Daily Dot during a recent interview, “and I made the judgment that we had to get into some additional areas.”
“I’m convinced that those of us who know that privacy and security aren’t conflicting values can prevail.”
Today, Oregon is still America’s top lumber producer, but Wyden is more famous for his work in those “additional areas.” Over the decades, Wyden has hardened into a fierce advocate, not just for Oregonians, but for anyone who uses the Internet. He has been one of Congress’ leading voices on key Internet issues—surveillance reform, online privacy, and cybersecurity, in particular—famously battling the entrenched U.S. intelligence community on issues ranging from unlawful domestic surveillance to the deliberate weakening of encryption standards.
As a member of the Senate Intelligence Committee, Wyden has led the charge to protect Americans from all manner of government overreach. But before the National Security Agency (NSA) became a household boogeyman and Edward Snowden a household name, Wyden’s technology focus was more economic than ideological.
“We had to find new ways to create high-skilled, high-wage jobs,” Wyden said in his deliberative way. “Back then, the Senate really didn’t have much of a footprint on technology. As you know, in the Senate, people were calling the Internet a series of tubes and the like. I said, here was a chance to really be in on the ground floor of shaping tech policy.”
In the nearly two decades since his election to the Senate, Wyden has undoubtedly done more to shape tech policy in the United States than almost any other lawmaker. He has, in many ways, become the Internet’s senator, taking hold of the tightening knots of technology and government policy so that the American people don’t get caught between the ropes.
Even before he left the House, Wyden championed a bill that allowed the Internet we know today to flourish into existence.
In 1995, Wyden and Rep. Chris Cox (R-Calif.) cosponsored the Internet Freedom and Family Empowerment Act. The House passed the bill almost unanimously. It was then incorporated into the larger Communications Decency Act (CDA) by House and Senate lawmakers who finalized the bill. The CDA, in turn, became a section of the landmark Telecommunications Act of 1996, which passed the Senate a week before Wyden began his first term there. Wyden’s work was enshrined in Section 230 of the Communications Decency Act, which quickly became one of the most important pieces of Internet legislation ever passed.
What Section 230 declared was radical in its simplicity: Website owners would no longer be liable for what their users posted. Until this section became law, a nascent Web company like GeoCities could be sued if one of its users wrote something defamatory or uploaded copyrighted material without the owner’s permission. Section 230 removed that risk.
“As I looked at it, I said, ‘That’s going to kill those folks,’” Wyden said. “Nobody’s going to invest in websites and blogs—and, of course, eventually social media—if they’d be held liable for something posted on the site. They get millions of postings.”
Thanks in part to Wyden’s efforts in the commercial Internet’s infancy, content companies like Friendster, MySpace, and LiveJournal had little to fear from opening up their services to the expanding online population. Without Section 230, it is doubtful that sites like Facebook, Twitter, or WordPress would even exist.
Wyden’s Internet legislation in the mid- to late-1990s Senate showed a similar appreciation for the economic incentives facing businesses and consumers in the early days of the Web. His Internet Tax Freedom Act banned local, state, and federal taxes on Internet access; Congress has renewed it multiple times, and the 114th Congress is considering legislation to make it permanent. Wyden also wrote the Electronic Signatures in Global and National Commerce Act, which cleared the way for secured transactions using digital signatures, thus improving the process of conducting business online.
“John Brennan is there because the president chooses to have him there. I do not have confidence in Mr. Brennan today.”
Wyden’s tech-policy work shifted direction in January 2001, when he joined the Senate Select Committee on Intelligence. The early years after the Sept. 11, 2001, terrorist attacks presented him with no shortage of national-security programs to scrutinize, and he played a key role in bringing down one of the George W. Bush administration’s most egregious surveillance operations, known as Total Information Awareness (TIA).
TIA, which Wyden once called “the biggest surveillance program in the history of the United States,” preemptively gathered information about American citizens in an effort to predict terrorist plots before they hatched. It was essentially a U.S. government pre-crime database—Minority Report meets the War on Terror. Wyden immediately began looking for ways to shut it down. He tasked an intern with reviewing TIA planning documents. The intern eventually hit upon the program’s most outrageous element: American intelligence officials were planning to use TIA data to place bets on international crises, such as assassinations of American and foreign leaders.
In mid-2003, from his perch on the Intelligence Committee, Wyden blew the whistle. Privacy groups were apoplectic, the public was shocked, and even the program’s staunchest defenders could offer no plausible rationale for the existence of the betting market. Wyden says the revelation killed TIA “within about 48 hours.”
Wyden, who speaks in even tones and only raises his voice when touching on his passion issues, had notched an early victory against government surveillance programs in the aftermath of 9/11, but he was far from done. In the decade between TIA’s demise and the Snowden leaks, he distinguished himself as one of the Senate’s leading civil-liberties advocates. In December 2005, after the New York Times exposed President Bush’s warrantless wiretapping program, Wyden and other Democratic senators demanded an “immediate inquiry” into the operation.
“We write to express our profound concern about recent revelations that the United States government may have engaged in domestic electronic surveillance without appropriate legal authority,” the senators wrote in their letter.
Wyden’s focus on surveillance issues at a time when they were receiving relatively little attention was critical to building momentum for increased scrutiny, says Neema Singh Guliani, legislative counsel at the American Civil Liberties Union (ACLU).
“In the early days, there were a lot of members who weren’t focused on these issues,” Guliani said, “but Senator Wyden was one of those members who was asking the tough questions.”
Mark Jaycox, a legislative analyst for the Electronic Frontier Foundation (EFF), noted the difficulty of balancing classification requirements with a public servant’s duty to serve the common good. He pointed to Wyden and former Sen. Russ Feingold (D-Wisc.) as the best practitioners of that balancing act in the early, pre-Snowden years of surveillance reform.
“He and Senator Feingold were one of the first senators to warn the public while still being gagged by the classified nature of what was going on,” Jaycox said. “They asked questions that did not reveal classified information but did allude to the massive collection that’s going on.”
The election of President Barack Obama marked a turning point in the surveillance debate in which Wyden had become a key voice. It was not that Obama’s approach to intelligence issues differed significantly from Bush’s. Rather, it was that, by 2008, America was far enough removed from 9/11 anxiety that civil-liberties arguments were finding a firmer foothold. Americans were beginning to fear government monitoring of their Gmail and Facebook accounts more than the prospect of a second attack on the homeland.
Changes in technology and society gradually shifted the debate in Wyden’s favor. But to truly catalyze the outrage that could tip the scales in favor of reform, America needed a wakeup call.
The galvanizing moment came on June 5, 2013, when the Guardian published a story about the NSA collecting telephone metadata from Verizon Wireless that showed that the government knew who called whom, when, and how long those calls lasted—for every call, including those made by Americans. Over the next several months, multiple news organizations, from the New York Times to the German magazine Der Spiegel, laid bare the astonishing breadth and depth of the American surveillance state, using documents provided to them by a then-29-year-old former NSA contractor.
Wyden had known about most of the operations detailed in the Snowden leaks, but the classified nature of his Intelligence Committee work had prevented him from disclosing what he knew. By exposing sordid details and diplomatic scandals, Snowden and the journalists who reported the contents of the files he leaked forced Americans to confront the messy nature of the government’s worldwide surveillance apparatus.
During the many congressional hearings that followed, Wyden lambasted government officials for breaking the law, violating Americans’ privacy, and endangering relations with foreign allies.
“The public understood what was going on when it comes to a lot of the NSA activities not [just] through Guardian articles,” said Jaycox, “but primarily within those first few weeks, you had Senator Wyden discuss and describe these documents and how they holistically play into what the intelligence community is doing.”
“What you saw in some of the hearings with Wyden,” Guliani sais, “is him participating and him asking the government witnesses, ‘Hey, is this really happening and can you tell us how many Americans are being affected?’ and not really taking ‘I don’t know’ for an answer, and following up hearing after hearing.”
The hearing for which Wyden is best known actually occurred prior to the Snowden revelations, on March 12, 2013, when Director of National Intelligence James Clapper testified before the Senate on American surveillance policy.
During the hearing, Wyden asked Clapper—who continues to oversee the 17 government agencies that make up the intelligence community—whether the NSA collected “any type of data at all on millions or hundreds of millions of Americans.”
“No sir. Not wittingly,” Clapper responded.
Within three months, the American public would know that the answer to this question was a resounding “yes.”
The director of National Intelligence had lied under oath to the United States Senate. Civil-liberties groups soon called for him to be charged with perjury—a demand that seems destined to ricochet in an echo chamber for eternity.
Two years after that famous hearing, Wyden says he believed that Clapper was still hiding things from his congressional overseers. He also says he had “substantial questions about the truthfulness” of Central Intelligence Agency Director John Brennan, whose officers spied on Senate investigators as they prepared a report on controversial Bush-era torture programs.
A Wyden aide pointed the Daily Dot to two documents that showed an apparent contradiction in Brennan’s attitude toward CIA scrutiny of the Senate’s work. Brennan said in a March 2014 interview that the CIA wouldn’t have any reason to review the Senate committee’s files related to the investigation. The next day, the CIA’s public-affairs director wrote in a USA Today op-ed that “CIA information technology specialists were asked to conduct a limited review” of the Senate’s files.
“You can’t reconcile those two,” Wyden said. “If a 19-year-old had done what the CIA did, in terms of hacking into the Senate’s files, the 19-year-old would be in jail today.”
Wyden also pointed to a statement by Gen. Keith Alexander, the former director of the NSA, who told Congress, “We don’t hold data on American citizens.” Wyden called that remark “one of the most false statements ever made about American intelligence.”
“I continue to have concerns about what I call the culture of misinformation that is part of the leadership of the intelligence community,” he said.
Wyden declined to directly criticize President Obama for failing to rein in U.S. surveillance programs, focusing instead on the fact that the president has kept officials like Clapper and Brennan in their posts despite widespread criticism.
“The president, at the end of the day, decides whether the intelligence leadership has the jobs that they have,” Wyden said. “John Brennan is there because the president chooses to have him there. I do not have confidence in Mr. Brennan today.”
A spokesman for the National Security Council declined to comment on Wyden’s surveillance-reform work.
Wyden’s efforts to address civil-liberties violations have also run into opposition from Sen. Dianne Feinstein (D-Calif.), the former chairwoman of the Intelligence Committee and now its ranking member. Feinstein, who declined to be interviewed for this story, has been a staunch supporter of the intelligence community and its many questionable operations. She has repeatedly defended the NSA’s phone-metadata collection program; and despite numerous reports questioning the usefulness of such programs, she has claimed that they have been “effective in helping to prevent terrorist plots against the U.S. and our allies.”
With top members of the Intelligence Committee like Feinstein and Chairman Richard Burr (R-N.C.) downplaying the threat of mass surveillance, it’s no surprise that the NSA and other intelligence agencies feel little pressure to change their behavior.
“There is no question,” Wyden said, “that in terms of the leadership of the intelligence community, while they seem to be aware that the public is much more skeptical of dragnet surveillance, there are still questions about how much real reform is going to take place.”
Wyden has continued pushing for real reform nonetheless.
Two of Wyden’s most recent initiatives have focused on data privacy and security. The GPS Act, which he co-sponsored with Rep. Jason Chaffetz (R-Utah), would create rules for how law enforcement could use GPS location data gathered from Americans’ smartphones and other devices. The Secure Data Act, meanwhile, would forbid the government from creating, or forcing tech companies to create, “backdoors” in commercial hardware and software—loopholes in the code that allow those who know about them to access otherwise protected systems or devices.
“The GPS Act reflects once again that federal law hasn’t kept up with technology, and it’s not clear if collecting Americans’ GPS data without a warrant is allowed,” Wyden said. He added that his bill would “give law enforcement clear, uniform standards that are critical to protecting Americans’ privacy rights.”
In his campaign to improve geolocation-data privacy, Wyden has received support from his longtime ally, Rep. Zoe Lofgren (D-Calif.), who introduced a similar bill in the House. Lofgren’s Online Communications and Geolocation Privacy Act would, as its name suggests, update a landmark 1986 law to improve protections for both geolocation and other online communications.
Lofgren told the Daily Dot that she designed her bill to be more comprehensive than Wyden’s to capitalize on a previous House vote showing broad bipartisan support for surveillance reform.
In June 2014, the House passed an NSA-reform amendment introduced by Lofgren and Rep. Thomas Massie (R-Ky.). The vote was 293-123, with 135 Republicans joining 158 Democrats. Lofgren and Massie’s amendment would have modified a comprehensive defense-policy bill to put new limits on the NSA, but the amendment failed in the Senate, and the reforms were never implemented. Undeterred, Lofgren saw an opportunity with her new bill to revive the spirit of reform.
“There’s no such thing as a magic door that can only be used by the good people for worthwhile reasons.”
“It was my judgment,” Lofgren said, “that we ought to go for broke over here on the House side at the outset [with both communications and geolocation provisions], especially given the coalitions that have developed between some of the conservative Republicans and myself on freedom issues.”
The ACLU’s Guliani said that the bipartisan House vote and the sustained discussion in the Senate were “due in large part to the efforts by members like Senator Wyden who have really focused on that issue and said, ‘Look, certain surveillance authorities were meant to do certain things, and if they’re going beyond that, then those are questions we need to ask, and we need to put in place the proper restrictions.’”
Lofgren and Wyden also worked together on the Secure Data Act in response to comments by senior intelligence officials that companies should make it easier for the government to gather data from their products. Federal Bureau of Investigation Director James Comey has been the leading face of this concerted government push against device and file encryption, using issues like child molestation to make the case for special government access to cellphones, hard drives, and email accounts.
“Justice may be denied because of a locked phone or an encrypted hard drive,” Comey told an audience at the Brookings Institute in October 2014.
As part of his push for more access to encrypted devices and services, Comey has singled out Apple and Google for adding automatic encryption to their mobile operating systems that even the companies themselves cannot break. In an interview with CBS News, Comey warned that these companies were putting their customers “beyond the law.”
Comey’s crusade against encryption is part of a broader government campaign against encryption, one that Wyden and Lofgren say could leave consumers vulnerable to foreign powers and rogue hacker groups.
“There’s no such thing as a magic door that can only be used by the good people for worthwhile reasons,” Wyden said. “You only have strong security or weak security. Americans are demanding strong security, and requiring companies to build backdoors in their products means deliberately creating weaknesses that a hacker or an unscrupulous foreign government can exploit.”
“The idea that you’d require companies to build weaker security into their products,” he said, “is a real head-scratcher.”
Lofgren said that she and Wyden introduced the Secure Data Act “to make that discrete issue [of surveillance backdoors] one that doesn’t get lost in the shuffle.” She pointed to the bipartisan support for her NSA-reform amendment, which included language about backdoors. “We already had a vote on the House side and we know it’s what a majority of the House wants to do.”
With the Secure Data Act, Wyden has tried to define the encryption debate in the Senate in a way that prioritizes civil liberties, an approach that has privacy watchdog groups cheering.
“He’s on the front edge of that issue before people start the conversation about changes to the law that are unproductive and a threat to privacy and security,” said Guliani.
Lofgren, who overlapped with Wyden for a year while he was still in the House, praised the senator’s work on surveillance reform and called him “someone who is not afraid to stand up for what’s right as he sees it.”
“He knows what the technology issues are and what the legal issues are, and he is willing to stand up for the Constitution in a politically savvy way,” she said. “He has played that role in the Senate as much [as], if not more than, anyone else. And he’s sort of a go-to guy, I think, on the technology-freedom issues that are so prevalent when it comes to the surveillance world that we deal with.”
The most notable of Lofgren and Wyden’s collaboration on civil-liberties issues came during the 2011-2012 debate over controversial online piracy legislation. While Wyden led the charge against the Protect IP Act (PIPA) in the Senate, Lofgren fought its more famous House counterpart, the Stop Online Piracy Act, better known as SOPA. The SOPA/PIPA protests galvanized the public’s attention on a level unprecedented in the history of the Internet. The only issue that has drawn comparable mainstream activism in recent years has been the debate over net neutrality.
While American tech companies and their users railed against the two bills from the outside, Wyden and Lofgren coordinated their efforts to defeat the bills in Congress. Both bills were eventually shelved by their sponsors after supporters defected en masse in the face of sustained public outrage.
“We were in frequent communication on our efforts to defeat those measures,” Lofgren said, adding that Wyden “played a key role” in the process.
Wyden and Lofgren have also made scrutinizing the government’s computer-related prosecutions a top priority. When U.S. Immigration and Customs Enforcement seized websites suspected of hosting pirated content in 2011, the two legislators sent a letter to the Department of Justice and ICE asking for detailed information about the government’s justification for the seizures. The government had said that linking to copyrighted material did not constitute free speech, a claim that Wyden called “particularly troubling.”
Those domain seizures constituted a large-scale example of the U.S. targeting computer crime in a legally dubious way, but Wyden and Lofgren also took note of a smaller, even more disturbing instance: the Justice Department’s prosecution of former Reddit employee and open-Internet activist Aaron Swartz for downloading a mass of journal articles from a nonprofit academic portal. Swartz took his own life in January 2013 because of what his father called “a criminal justice system rife with intimidation and prosecutorial overreach.”
“The law must separate its treatment of everyday Internet activity from criminals intent on causing serious damage to financial, social, civic, or security institutions,” the two wrote in a 2013 Wired op-ed.
Whether it is reforming a computer-crimes statute or preventing overzealous copyright legislation from chilling online speech, Wyden has been at the forefront of nearly every Internet policy battle in the last several decades.
“I think that he’s someone who’s listened to on this,” Lofgren said. “I give him a lot of credit for making sure that these important issues are first known by the American public and also not able to be simply swept under the rug in the U.S. Senate.”
Guliani agreed that Wyden was respected among his colleagues for his unique dedication to surveillance reform.
“Because he’s been on the Intel Committee, his staff, and him personally, have really looked into the issue very deeply,” she said. “Other members who don’t sit on the committee really look to him to say, ‘Should I or shouldn’t I support a piece of legislation that has to do with surveillance issues?’”
“To be frank,” Guliani added, “I talk to lots of offices and they say to us what they think about certain pieces of legislation. They often say to me, ‘That’s great, I’m glad to hear your perspective. I want to see where some of the other offices are.’ And some of those other offices are Wyden’s office.”
“He knows what the technology issues are and what the legal issues are, and he is willing to stand up for the Constitution in a politically savvy way.”
For technical reasons, surveillance-policy debates are uniquely complex. For security reasons, they are uniquely sensitive. Among civil-liberties advocates, Wyden is known as someone who can process reams of classified documents and deploy what he learns in the most convincing way possible.
“Something special that Senator Wyden brings to the table on that issue in his engagement, which is particularly forceful and particularly useful,” said Guliani. “Because of his long history of engagement, because of the quality of his work, from him and his staff, and really his expertise in the matter, offices do look to him. I hear lots of offices who look to him for that kind of guidance.”
“Senator Wyden has been an enormous help,” Jaycox said. “He has been one of a handful of senators who’s willing to ask tough questions of the intelligence community, one of a handful of senators who will go to these briefings and digest all of the material, the often dense material, that the intelligence communities provide to him.”
Wyden consistently attends the twice-weekly hearings of the Senate Intelligence Committee, an aide told the Daily Dot, and in the leadup to an important hearing, he sometimes spends several hours per day reading classified material in a secure room. Only one of his staffers, an intelligence aide named John Dickas, is cleared to attend closed-door Intelligence Committee hearings and read classified material.
Wyden’s other staffers familiarize themselves with as much unclassified material as possible. They work with Dickas to brief other senators’ offices on upcoming intelligence votes and hearings.
“His staff is not on the sidelines, they’re not reading other people’s talking points,” Guliani said. “They are reading the legislation. They are understanding what it means. They are asking the hard questions.”
“It’s really that level of engagement, that level of detail-orientedness, that I think is what separates him from a lot of members on this issue,” she added, “and is the reason, frankly, that so many members look to his office for guidance on some of these questions.”
The outreach from Wyden’s office on intelligence matters is particularly important given that many senators don’t have any staff members with intelligence clearances. They must either read the classified documents themselves or rely on advice from their colleagues.
“Senator Wyden’s actions help the senators,” Jaycox said. “He catalyzes senators to go to these briefings and to read this material when often they’re the sole person in their office who can read the material or understand the material.”
A Wyden aide would not elaborate on how Wyden’s office worked with other senators on classified material—whether the senator held regular meetings with colleagues to explain classified information—but did say that Wyden considered such coordination a priority.
“If an intelligence issue is about to come before the full Senate, he works hard to bring important information to the attention of his fellow senators,” the Wyden aide said. “There is also quite a bit of outreach at the staff level, though that obviously can be difficult if you’re dealing with an issue that is so secret that most senators don’t have any staff that are cleared for it.”
Wyden’s third term in Senate will end in January 2017, and he has not yet announced whether he will run for a fourth term. Regardless, he has already cemented his legacy as a civil-liberties champion at the dawn of a new privacy-minded era.
“He will be seen as one of the members of Congress who really made an impact on the debate and moved it forward in a positive way,” Guliani said.
Jaycox argued that Wyden understood both “the short-term implications of law, technology, and privacy” and “the long arc that is taking place … in regards to how technology will develop and how we will interact with computers and devices in the future.”
“We’re still only in the fortieth, fiftieth year of the public Internet,” Jaycox said. “In the grand scheme of things, we are still pretty early on into how we interact with the Internet, how we interact with technology.”
He added that Wyden “will be seen as a senator who put a tremendous amount of forethought into how technology, law, and privacy intersect.”
Wyden still sees many civil-liberties battles on the horizon, all of which he connects to “the fight for an open and free Internet.” He is currently fighting a lonely battle against the controversial Cybersecurity Information Sharing Act (CISA), a bill that would increase the sharing of so-called cyberthreat information between private firms, such as Facebook or Apple, and various government agencies, including the NSA. He was the only member of the Intelligence Committee to vote on March 12 against sending CISA to the full Senate. After the committee vote, he called CISA “a surveillance bill by another name,” saying it “lacks adequate protections for the privacy rights of American consumers” and would “have a limited impact on U.S. cybersecurity.”
Wyden also recently told BuzzFeed that the U.S. government still has “plenty” of undisclosed domestic spying programs. That these programs have remained secret despite the Snowden leaks and the ensuing scrutiny is perhaps all the more reason for Wyden to keep up his fight.
In June, Section 215 of the Patriot Act—the statutory basis for many of the most controversial surveillance programs—is set to expire. Wyden says he has been working to gather 60 votes (the minimum number of senators needed to break a filibuster) for a bill to end the “dragnet surveillance” that the Patriot Act established.
“If we can get a real debate about it,” he said, “I’m convinced that those of us who know that privacy and security aren’t conflicting values can prevail.”
Illustration by Jason Reed
Eric Geller is a politics reporter who focuses on cybersecurity, surveillance, encryption, and privacy. A former staff writer at the Daily Dot, Geller joined Politico in June 2016, where he's focused on policymaking at the White House, the Justice Department, the State Department, and the Commerce Department.