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FISA Powers Temporarily Expire

March 16, 2020

Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) introduced the “USA FREEDOM Extension and Amici Curiae Reform Act”, a bill that provides federal law enforcement the tools they need to protect Americans from foreign powers while also better protecting the civil liberties of all Americans.

“Our Founding Fathers knew well the danger of a government with the power to snoop through the private communications of law-abiding Americans. They included the Fourth Amendment in the Bill of Rights to limit the government’s ability to spy on its citizens,” Sen. Lee said. “This bill brings much needed common sense reforms to our federal government’s foreign surveillance programs so that Americans’ civil liberties are not violated again.”

“I have been working with Senator Lee for years to rein in our nation’s surveillance authorities, which are still clearly too susceptible to abuse,” Sen. Leahy said. “Our legislation today would end the mass collection of call detail records, improve transparency and accountability, and increase privacy and civil liberties protections for all Americans. Recognizing that passing broad surveillance reform can take time we are also introducing a bill that pairs a short extension with significant reform of the amicus curiae process. We look forward to fighting for the comprehensive FISA reform Americans deserve.”

On March 15th, three provisions of the Foreign Intelligence Surveillance Act expired:

The “business records” provision (50 U.S.C. §1861),

The “roving wiretaps” provision (50 U.S.C. §1805(c)(2)(B)), and

The “lone wolf” provision (50 U.S.C. §1801(b)(1)(C)).

With these authorities set to expire within a week, Sens. Leahy and Lee introduced a short three-month extension of the FISA authorities that is coupled with significant reform of the FISA amicus curiae process, the USA FREEDOM Extension and Amici Curiae Reform Act.

This bill:

Ends the Call Detail Records program.

Strengthens First Amendment protections by changing the standard for surveillance under Section 215 based on First Amendment protected activities from “solely” to “substantially”.

Prohibits collection of business records without a warrant if law enforcement would require a warrant for the same search.

Requires a showing of probable cause that a known U.S. person is an agent of a foreign power or has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law for Section 215 warrants.

Excludes the following from the definition of “tangible things” under Section 215: cell site location information, global positioning system (GPS) data, internet web browsing information, internet search history and medical and health-related records.

Requires disclosure of decisions by the Foreign Intelligence Surveillance Court (FISC) or the Foreign Intelligence Surveillance Court of Review (FISCR) to include opinions that address the meaning of “specific selection term”, involve amicus curiae, or address the prohibition on obtaining authority for a search that would require law enforcement to obtain a warrant.

Requires that a court-appointed amicus have an expertise in privacy and civil liberties.

Requires the FISC to appoint an amicus curiae in cases involving a “sensitive investigative matter” defined as involving a public official, candidate, religious or political organization or staff thereof, or news media within the United States or a matter the FISC finds to be of similar sensitive nature.

Expands amicus duties from raising general privacy and civil liberties arguments to include raising “legal arguments regarding any colorable privacy or civil liberties interest of any aggrieved United States person”.

Allows amicus, once appointed, to raise any issue with the court at any time. Also, allows amicus to petition FISC to certify a question of law to the FISCR and may seek certiorari from the Supreme Court to review any FISCR decision.

Provides amicus with access to all court documents, including relevant decisions and precedents relied upon by the government.

Requires the government to turn over any “material” information “including any exculpatory information” as part of its application.

Requires the Inspector Generals of the intelligence community and DOJ to audit FISA applications from the preceding year.

Finally, the bill extends the expiring Section 215 business records provisions, the roving wiretaps provisions and the lone wolf provisions through December 2023.

Today, Rep. Jerrold Nadler (D-NY), the Chairman of the House Judiciary Committee, and Rep. Adam Schiff (D-CA), the Chairman of the House Intelligence Committee, released the following statement after introduction of H.R. 6172, the USA FREEDOM Reauthorization Act of 2020:

“Along with the House Leadership, we have engaged in bipartisan negotiations with input from many members to get to a deal on reforming FISA while reauthorizing important national security provisions set to expire this weekend. Through those negotiations, we have been able to incorporate significant reforms to increase civil liberty and privacy protections to the base bill, and additional provisions that should garner bipartisan support.

“As with any negotiation, no one side is getting everything they want, but we believe it’s important to enhance transparency and privacy safeguards wherever possible. This bill would build on the achievements of the USA Freedom Act to increase the oversight and transparency of the FISA process. We look forward to working with our Members to pass this legislation, which would mark a significant step forward for civil liberties and avoid the possibility of a less progressive Senate extension or the expiration of authorities that are vital to national security.”

Background:

An explanation of the key reforms within the USA FREEDOM Reauthorization Act can be found below with a section-by-section analysis available
here:

New Limitations on Authorities:

  • Ending the NSA’s Authority to Collect Call Detail Records on an Ongoing Basis: The bill repeals the government’s authority to collect call detail records on an ongoing basis. That program, as reformed by the USA FREEDOM Act, resulted in the NSA collecting more than 430 million call detail records in 2018 alone. It has been riddled with technical problems and was shut down last year. The bill ensures that it cannot be restarted.
  • Protection for Geolocation and Other Information: The bill prohibits the government from using Section 215 to collect any records if a warrant would be required to collect the same records for law enforcement purposes. It also expressly prohibits the government from using Section 215 to collect cell site location information or GPS information. These limitations codify and exceed those imposed in the law enforcement context by the Supreme Court’s 2018 holding in Carpenter v. United States.
  • Retention Limits: The bill prohibits the government from retaining materials collected under Section 215 for more than five years, subject to limited exceptions.

Stronger Checks on Surveillance:

  • Notice Requirement: The bill requires the government to provide notice to individuals targeted in national security investigations whose information is collected pursuant to Section 215 if the government plans to use that information, or any information derived from it, in a criminal case or other legal proceeding. The person receiving notice may challenge the legality of the collection and obtain independent review by a court or government body charged with administering the legal proceeding.
  • Enhanced First Amendment Protections: The bill requires the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISC-R) to appoint an amicus curiae if an application by the government—whether pursuant to Section 215 or any other part of FISA—presents exceptional concerns about the First Amendment rights of U.S. persons.
  • Additional Strengthening for Amicus Curiae Provisions: The bill enhances amici’s ability to access relevant information and would allow amici to seek review of important legal issues in the FISC-R and in the Supreme Court.

Greater Transparency:

  • Declassification of Significant Opinions: The bill requires the government to declassify significant FISC and FISC-R opinions within 180 days. Further, it expressly requires the government to declassify (1) opinions in which the FISC or FISC-R construes the new provision that prohibits the use of Section 215 to obtain records for which a warrant would be required in the law enforcement context, or (2) opinions issued from cases in which an amicus has been appointed. It also requires the government to conduct a declassification review of opinions issued before the USA FREEDOM Act’s enactment, which the government has thus far refused to do.
  • Review of Impact on Protected Classes and First Amendment Activities: The bill directs the Privacy and Civil Liberties Oversight Board (PCLOB) to conduct a study of the manner in which the government’s use of FISA authorities may be premised on or may impact protected classes, including based on race, ethnicity, national origin, religion, or sex. The study would also review whether protected First Amendment activities are used to support targeting decisions, and any impacts that may have on people’s exercise of their First Amendment rights.
  • Strengthening Reporting Requirement for 702 Queries: The bill eliminates an existing exemption for the FBI and requires the Bureau to report instances in which it queries Section 702 databases for information about U.S. persons. It strengthens these reporting requirements across agencies by requiring reporting of queries that are “reasonably likely to identify a United States person,” in addition to queries involving “a known U.S. person.”
  • Reports on the Government’s Legal Positions: The bill requires the Justice Department to publish reports explaining its positions on two significant and controversial subjects: (1) the manner in which the government determines whether information is “obtained or derived” from FISA activities for the purposes of the law’s notice requirements; and (2) the manner in which the government interprets the prohibition against investigations predicated “solely upon the basis of activities protected by the First Amendment to the Constitution.”

Ensuring Integrity in the FISA Process:

  • Certifications Regarding Accuracy: The bill requires officers responsible for FISA applications to certify that the Justice Department has been apprised of all information that might call into question the accuracy of the application or that would otherwise raise doubts about the findings necessary under the law. This provision remedies significant failures by the FBI to provide such information to DOJ, as identified by the Inspector General.
  • Remedies for Misconduct: The bill clarifies that contempt before the FISC and FISC-R is punishable under the exiting criminal contempt statute; enhances certain penalties regarding misues of FISA authorities; and expressly prohibits unauthorized disclosures of FISA applications.
  • Compliance Officers: The bill requires the FBI and other agencies responsible for submitting applications to the FISC to appoint officers responsible for ensuring compliance with the law, including provisions ensuring the accuracy of FISA applications and all minimization, targeting, and querying procedures.

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