Senate Amends FISA Reauthorization; Bill Goes Back To House

A bill to renew three lapsed surveillance provisions was changed during debate, and it is unclear when the House would take up the bill.  

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The Senate sent an amended version of the Foreign Intelligence Surveillance Act (FISA) reauthorization back to the House without a clear timeline as to when that body will take up this bill. The Senate adopted one amendment to bolster the FISA amicus and disclosure process, narrowly failed to adopt another to exclude web browsing information and search history outside the scope of Section 215, and handily rejected an amendment to limit the use of FISA against United States persons.

In March, the House passed the “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) by a 278-136 vote, a bill to reauthorize three expiring FISA provisions used by the National Security Agency (NSA) primarily to conduct surveillance: the business records exception, roving wiretaps, and the “lone wolf” provision. These authorities had been extended in December 2019 to March 15, 2020. However, the Senate did not act immediately on the bill and opted instead to send a 77-day extension of these now lapsed authorities to the House, which did not to take up the bill. The Senate was at an impasse on how to proceed, for some Members did not favor the House reforms while others wanted to implement further changes to the FISA process.

Moreover, H.R. 6172 ends the NSA’s ability to use the so-called call detail record (CDR) program that had allowed the agency to access data on many billions of calls. Nonetheless, the NSA shut down the program in 2018 due to what it termed technical problems. This closure of the program was included in the bill even though the Trump Administration had explicitly requested it also be reauthorized.

As mentioned, 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.

Senators Pat Leahy (D-VT) and Mike Lee (R-UT) succeeded in having their amendment to expand the amicus process expanded during the FISA process by a 77-19 vote. In an op-ed in The Washington Post, Leahy and Lee argued

  • The key to our proposal is to substantially strengthen a program that currently allows FISA judges, in very limited circumstances, to appoint outside legal scholars — called “amici”— to independently analyze FBI surveillance requests that are particularly sensitive. Out of thousands of cases, FISA judges have called for such an independent review by a court-appointed “amicus” only 16 times. Yet this protection is critical because, unlike every courtroom you may have stepped into or any court in a TV drama, the FISA court is not adversarial — meaning there is only a government lawyer and a judge, but no one to advocate for Americans under surveillance.
  • We propose measures that would authorize and actively encourage judges in this secret court to seek independent amicus reviews in all sensitive cases — such as those involving significant First Amendment issues — thereby adding a layer of protection for those who will likely never know they have been targeted for secret surveillance.

Leahy elaborated during floor debate:

  • My amendment with Senator Lee would create a presumption of amici participation in cases involving significant First Amendment issues, not just “exceptional concerns” as in the House bill. Importantly, we also create a presumption of amici participation when the FBI considers the case to be a “sensitive investigative matter” which the FBI would call an investigation involving the domestic media, a domestic religious organization, or a public official. I think all of us should agree that in those instances we ought to have somebody independently looking at them.
  • Most critically, though, we would leave the decision to appoint amici entirely up to the FISA judge. Even if it would fall into all of these categories they could still say no. As a result, the argument that the expanded amici participation would duly burden the court doesn’t even withstand the slightest scrutiny. If the judge believes amici would not be appropriate because the case is too time sensitive or too simple or too routine or for any other reason–any other reason–they have the discretion to not appoint amici at all. Under our amendment, throughout the FISA process, the judge maintains complete control. It is not a burden on the court. What it is doing is empowering the court. It is up to them.

Senators Ron Wyden (D-OR) and Steve Daines (R-MT) offered an amendment to narrow the Section 215 exception to the Fourth Amendment’s requirement that a search requires a warrant. Section 215 currently allows for FISA court approved searches of business records and all tangible things in the course of a national security investigation, and H.R. 6172 would, as noted, exclude cell site location and GPS location from Section 215.

As Wyden explained during debate,

With web browsing and searches, you are talking about some of the most intimate, some of the most personal, some of the most private details of the lives of Americans. Every thought that can come into people’s heads can be revealed in an internet search or in a visit to a website: their health histories, their medical fears, their political views, their romantic lives, their religious beliefs. Collecting this information is as close to reading minds as surveillance can get. It is the digital mining of the personal lives of the American people.

However, the amendment failed to reach the 60-vote threshold necessary for adoption under the rule of debate for H.R. 6172, failing by one vote as four Senators did not vote.

Finally, Senator Rand Paul (R-KY) offered an amendment “to prohibit the use of  authorities  under  [FISA]  to  surveil  United  States  persons  and  to  prohibit  the  use of information acquired under such Act in  any  criminal,  civil,  or  administrative  proceeding or as part of any criminal, civil, or  administrative  investigation,  and  for  other purposes.” Paul’s amendment would bar the use of FISA for the following:

(1)  electronic surveillance of a United  States person;

(2)  a  physical  search  of  a  premises, information, material,  or  property used  exclusively  by, or under the open and exclusive  control of, a United States person;

(3) approval of the installation and use of a pen register or trap and trace device to obtain information concerning a United States person;

(4) the production of  tangible  things (including  books,  records,  papers,  documents,  and other items) concerning a United States person; or

(5) the  targeting of a United States person for the acquisition of information.

Moreover, prosecutors could not use any such information in court proceedings against U.S. persons if obtained without a warrant issued by a federal court excepting FISA courts.

The amendment failed by an 11-87 vote, and then the Senate sent the amended version of H.R. 6172 back to the House by an 80-16 vote where its path to enactment is not immediately clear, in no small part, due to the extended COVID-19 recess that body has taken. However, the House Rules Committee is taking up a proxy voting measure today that may allow all Members to vote without having to be in Washington. This may allow action much sooner on the bill.

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