House Passes FISA Reauthorization; Senate To Vote Today

Last week, the House passed the “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) by a 278-136 vote, a bill to reauthorize three expiring Foreign Intelligence Surveillance Act (FISA) provisions used by the National Security Agency (NSA) primarily to conduct surveillance: the business records exception, roving wiretaps, and the “lone wolf” provision.

However, the Senate started the process of invoking cloture on H.R.6172 before leaving for the weekend, and these authorities lapsed on March 15 when the current authorization ended. The Senate is scheduled to hold a vote to invoke cloture on the motion to proceed to the bill at 5:30 pm. During floor consideration on March 12, Senator Mike Lee (R-UT) twice asked for unanimous consent to pass a clean 45-day extension of the expiring FISA authorities and then the consideration of amendments to H.R. 6172 offered by Members looking to reform and limit FISA, but Senate Intelligence Committee Chair Richard Burr (R-NC) objected to each request.

A few weeks ago, the House Judiciary Committee set a February 26 markup of the bill that had been agreed upon with the House Intelligence Committee. However, Representative Zoe Lofgren (D-CA), was dissatisfied with the bill, calling it “so pitiful that it is not even worth pursuing.” She added that “[w]e have the opportunity to reform the system…[and] [w]e should take that opportunity.” Reportedly, Lofgren was going to offer amendments changing the bill to require that an amici curiae be appointed to oppose every government application under FISA to surveil an American and to change the definition of business records to exclude cell phone location, web browsing data, and search history. Information on the other amendments was not made available.

H.R. 6172 would end the controversial Call Detail Record (CDR) program that replaced the bulk telephony metadata program exposed by former NSA contractor Edward Snowden. The NSA had already shut down this program over what it framed as technical issues and deleted all the CDRs acquired from telecommunications companies, and yet, the Trump Administration asked that the program be reauthorized and vowed not to restart it until a need arose for these authorities. However, this request was coolly received by many Republicans and Democrats.

Also, H.R. 6172 would reauthorize the business records exception, which includes “any tangible thing,” in FISA first instituted in the USA PATRIOT Act in 2001 but would reform certain aspects of the program. For example, if the Federal Bureau of Investigation (FBI) or NSA is seeking a business record under FISA for which a law enforcement agency would need to obtain a warrant, then the FBI or NSA will also need to obtain a warrant. Currently, this is not the case. Additionally, under H.R.6172, the FISA application process under Section 215 could not be used to obtain a person’s cell site location or GPS information. However, the FBI or NSA would still be able to use Title I of FISA to seek cell site location or GPS data for purposes of conducting electronic surveillance related to alleged foreign intelligence. The bill would require that prosecutors must inform defendants of the evidence derived from electronic surveillance unless doing so would harm national security.

Moreover, records obtained under Section 215 could be retained no longer than five years subject to a number of exceptions that may serve to make this limitation a dead letter. For example, if such records are deemed to have a “secret meaning” or are certified by the FBI as being vital to national security, then such records may be held longer than five years. Given the tendency of agencies to read their authority as broadly as possible and the past record of IC agencies, it is likely these authorities will be stretched as far as legally possible. It bears note that all restrictions are prospective, meaning that current, ongoing uses of Section 215 would be exempted. The business records provision would be extended until December 1, 2023 as are the other two expiring authorities that permit so-called roving wiretaps and allow for surveillance of so-called “lone wolves.”

For FISA applications under Title I (i.e. electronic surveillance), any agency seeking a FISA order to surveil will need to disclose to the FISA court any information that may call into question the accuracy of the application or any doubtful information. Moreover, certain FISA applications to surveil Americans or residents would need to spell out the proposed investigative techniques to the FISA court. Moreover, any FISA application targeting U.S. officials or candidates for federal office must be approved by the Attorney General in writing before they can be submitted. H.R.6172 would permit the suspension or removal of any federal official, employee, or contractor for misconduct before the FISA court and increases criminal liability for violating FISA from five to eight years. Most of these reforms seem aimed at those Members, many of whom are Republican, that were alarmed by the defects in the FISA surveillance process of Trump Campaign associate Cater Page as turned up by the Department of Justice’s Office of the Inspector General investigation. Some of these Members were opposed to the House Judiciary Committee’s initial bill, which they thought did not implement sufficient reforms to the larger FISA process.

Like the bill the House Judiciary Committee was to mark up, the “USA FREEDOM Reauthorization Act of 2020” would set a six-month deadline for the Director of National Intelligence to declassify significant FISA opinions, orders, and decisions. The bill also beefs up the adversarial procedures in the FISA process by expanding the process by which amici curiae are expanded and their ability to ability FISA decisions to the FISA review court would also be expanded. Additionally, both FISA courts and the FISA review court would be empowered to seek outside legal counsel.

The Intelligence Committees would see their power increased to seek and obtain FISA applications in order to conduct oversight of the FISA process.

Finally, the powers of the Privacy and Civil Liberties Oversight Board (PCLOB) to oversee the FISA process would also be expanded. PCLOB would need to report on the extent to which FISA investigations are arising from protected First Amendment activities and from protected characteristics such as race, gender, sexual orientation, and others. There are broader PCLOB reforms that, for example, lengthen PCLOB members’ terms to six years and allows them to serve past the six-year mark until a successor is confirmed by the Senate as is the case with many other agencies.

During floor debate on H.R. 6172, House Judiciary Committee Chair Jerrod Nadler (D-NY) explained “[i]t is by no means a perfect bill…[and] [t]here are many other changes to FISA that I would have liked to have seen here, but this bill includes very important reforms:

  • First and foremost, it ends the NSA’s Call Detail Records program, which began as part of a secret and unlawful surveillance project almost 20 years ago.
  • This bill also prohibits the use of Section 215 to acquire information that would otherwise require a warrant in the law enforcement context. Our understanding of the Fourth Amendment has come to recognize a privacy interest in our physical location, and this legislation provides new protections accordingly.
  • As the law continues to evolve, the public will see how the government applies these standards in the FISA court. This bill requires the government to disclose all significant opinions of the FISA court within 180 days.
  • The bill also requires a one-time historical review of all significant opinions issued by the court since its inception.

Nadler stated the bill was changed to address the concerns of stakeholders on the left and right:

  • To address the concerns of those who seek additional guarantees of privacy, we have added new retention limits, new reports to explain key legal issues, and an explicit prohibition on the use of Section 215 to obtain GPS and cell site location information.
  • Other Members asked us to address the deep structural flaws in FISA identified by the inspector general in the report issued late last year. We have done just that. Working with our Republican colleagues, we have mandated additional transparency in FISA applications, created additional scrutiny for cases that involve elected officials, and elevated the consequences for misrepresenting information to the FISA court.

Lofgren argued against passage of the bill:

  • I would like to quote from the American Civil Liberties Union letter received today. The American Civil Liberties Union strongly urges us to vote ‘‘no’’ on this bill. They say: ‘‘Over the last several years, it has been abundantly clear that many of our surveillance laws are broken.’’
  • But that, ‘‘disappointingly, the reforms contained in H.R. 6172 are minimal—in many cases merely rep-resenting a codification of the status quo. In addition,’’ the ACLU says, ‘‘the bill contains provisions that would be a step back from even our flawed current law.’’
  • The ACLU goes on to say that ‘‘the bill fails to require that individuals receive appropriate notice and access to information when FISA information is used against them,’’ that ‘‘the bill fails to fully address deficiencies with the FISA court that have led to illegal surveillance,’’ that ‘‘the bill fails to appropriately limit the types of information that can be collected under Section 215,’’ that ‘‘the bill fails to appropriately raise the standard for collecting information under Section 215,’’ and that ‘‘the bill fails to appropriately limit the retention of information collected under Section 215.’

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