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Rightsizing U.S. Surveillance Authority: Delivering on the USA Freedom Act Reforms

· May 11, 2020

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Seven years have passed since former NSA contractor Edward Snowden captured international attention by releasing confidential files detailing how the USA PATRIOT Act had been interpreted to justify the operation of sweeping and unanticipated surveillance programs by the U.S. intelligence community. 

The shockwaves triggered by the Snowden revelations have been far-reaching, ushering in reforms that are still clearly visible and relevant today. For example, since the disclosures, the U.S. technology sector has increasingly adopted public transparency reporting on government requests for user information. Furthermore, the vast majority of websites are now protecting users’ browsing activity by default through the use of encrypted HTTPS connections. The European Union and United States also renegotiated a key treaty establishing privacy rules for companies transferring personal data to the U.S. Perhaps most significantly, Congress conducted extensive debate over surveillance policy, culminating in the passage of the USA Freedom Act to prevent surveillance abuses and strengthen consumer trust in the Internet.

The USA Freedom Act was a landmark piece of legislation that earned bipartisan support and received endorsements from both civil liberties groups and the technology industry. The Act reined in surveillance authorities for the first time in a generation by adopting three broad categories of reforms to ensure that surveillance tools are balanced, targeted, and subject to appropriate transparency and oversight: 

  1. The Act withdrew authority for the bulk collection of communications metadata, requiring targeted approval by the Foreign Intelligence Surveillance Court (FISA Court) for collecting non-content records of phone calls and text messaging.
  2. The Act expanded transparency over surveillance activities by creating new government reporting requirements and mandating the declassification of significant constructions or interpretations of law by the FISA Court.
  3. The Act promoted accountability in the FISA Court through the creation of an independent amicus curiae panel to provide guidance on matters relating to privacy and civil liberties.

Critically, the USA Freedom Act also retained ‘sunset’ dates for the expiration of certain surveillance authorities, based on the idea that Congress should periodically review surveillance programs on the bases of their cost, intelligence value, and impact on civil liberties. 

Assessing the Surveillance Landscape Today

On March 15, due in part to disruption of the legislative schedule caused by the ongoing COVID-19 pandemic, the surveillance powers authorized by the USA Freedom Act expired. This has created a powerful impetus for Congress to fulfill its oversight function by assessing the reforms advanced by the USA Freedom Act and making any necessary revisions to protect Americans’ civil liberties if these authorities are to be renewed. While the USA Freedom Act advanced important principles, recent developments have highlighted the need for additional reforms to secure the intentions of the Act.

In recent months, revelations of deficiencies in the application process for FISA surveillance orders have prompted new calls for surveillance reform. For example, a December 2019 Inspector General (IG) report discovered significant errors and omissions in the FBI’s applications for FISA warrants to surveil an advisor to President Trump’s 2016 campaign. A subsequent IG audit of 29 FISA applications found missing documentation in four cases and “identified apparent errors or inadequately supported facts” in all of the remaining files. The discovery of these recurring errors have driven calls for a greater role for the FISA Court’s independent amici curiae to support a fair and adversarial process in surveillance order proceedings.

Another focal point of the ongoing debate over U.S. surveillance authority involves the Call Detail Records (CDR) program — the successor to the NSA’s bulk collection of telephony metadata exposed by Snowden and invalidated by the Second Circuit in ACLU vs. Clapper. A recent report by the Privacy and Civil Liberties Oversight Board (PCLOB) on the government’s use of the CDR program revealed that it has cost over $100 million to operate and that despite over-collecting millions of Americans’ phone records, it has generated unique intelligence information on only two occasions. Given these performance issues, the CDR program was voluntarily suspended by the NSA in 2019 after balancing “intelligence value, associated costs, and compliance and data-integrity concerns.” 

Bipartisan Legislation to Reinforce and Secure Surveillance Reforms

The USA Freedom Act was made possible by a broad coalition of multi-stakeholder support representing diverse points across the political spectrum, and it appears that this coalition is once again emerging. On March 11, the House of Representatives passed H.R. 6172 – the USA Freedom Reauthorization Act of 2020 – by a vote of 278-136. Negotiated with Congressional leaders of both parties and Attorney General Barr, this compromise legislation would reauthorize expired surveillance authorities while further bolstering transparency and oversight mechanisms to protect civil liberties. Specifically, the bill would enact the following reforms to promote the narrowly tailored and accountable exercise of the government’s surveillance tools:

1. Revoke Authority for the Call Detail Records Program.

As described in the February PCLOB report, the now-suspended Call Detail Records program has been a costly endeavor, rife with technical errors resulting in the overcollection of Americans’ private records while providing negligible, if any, intelligence value. H.R. 6172 takes a common sense first step to surveillance reform by eliminating statutory authority for this unnecessary and invasive program.

2. Clarify Warrant Requirements.

Section 215 of the USA PATRIOT Act authorizes requests for the production of third-party “business records” relevant to an investigation, such as books, documents, and other “tangible things.” H.R. 6172 would restrict the use of this authority to require the production of cell-site location data, GPS information, or other personal information that would require a warrant if sought in the criminal context. This is an important clarification because in the modern digital economy, certain business records can reveal intimate details of a person’s life and should be regarded as highly sensitive. This principle was recognized in the Supreme Court’s 2018 Carpenter decision, finding that a warrant was required for obtaining the cell-site location information related to an individual’s movements over a seven-day period.

3. Expeditious Disclosure of Significant FISA Court Surveillance Opinions.

The USA Freedom Act requires the disclosure of novel and significant FISA Court opinions so that lawmakers and the public can be informed about how the FISA Court is interpreting and applying its surveillance authority. However, the Act omitted any statutory timeframe for doing so, creating possible incentives to delay publication of certain decisions for many months. H.R. 6172 would create a 180-day declassification review deadline for the public release of important FISA cases, meeting the transparency promise of the USA Freedom Act.

4. Expanded Role of FISA Court Amici Curiae.

Finally, the USA Freedom Act required the FISA Court to appoint amicus curiae — advocates with expertise in privacy, civil liberties, and technology to provide an independent perspective and, where appropriate, contest arguments made by the government. H.R. 6172 would strengthen the role of the amici curiae by (1) expanding the types of FISA cases the amici curiae would participate in, such as those involving First Amendment-protected activities; (2) authorizing the amici curiae to petition for review of FISA Court decisions; and (3) clarifying and expanding the ability of the amici curiae to access and review relevant FISA Court documents.

Senate to Consider Additional Reforms

Senate Majority Leader McConnell has announced that this week the Senate will take up the House’s FISA reauthorization and reform bill. Additionally, negotiations led by Senators Lee (R-UT) and Paul (R-KY) have ensured that the Senate will debate and vote on additional surveillance reforms. It is anticipated that the following bipartisan amendments will be considered:

  1. An amendment from Senators Daines (R-MT) and Wyden (D-OR) to bar law enforcement from using the FISA business records provision to obtain sensitive internet browsing and search data without a warrant.
  2. An amendment from Senators Lee (R-UT) and Leahy (D-VT) to further expand the involvement in the FISA Court’s amici curiae in matters implicating civil liberties concerns.

Given the importance of the civil liberties at stake and evidence of ongoing deficiencies in the FISA process, the Senate should carefully deliberate on these amendments and consider any other issues where surveillance reform may be necessary.

Conclusion

As the technical capabilities to collect and analyze personal data grow more advanced, it will be tempting for governments to conduct invasive surveillance over their citizens. Countries that value democratic principles must ensure that intelligence tools are carefully scoped to respect personal freedom and protect civil liberties. While the USA Freedom Act took a critical step forward in restoring public transparency and accountability over U.S. surveillance activities, Congress must remain vigilant in its oversight function to ensure that the intelligence community has the tools to protect U.S. citizens without violating personal liberties. Given what is now known about the operation of USA Freedom Act reforms, lawmakers should take additional steps to ensure that domestic intelligence gathering capacities are balanced, accountable, and transparent.

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