Congress has just five weeks to decide the fate of key foreign
intelligence surveillance powers — forcing a showdown between surveillance
reformers and defenders. And now, a group of Republicans and Democrats have
unveiled the strongest comprehensive reform proposal that we have seen
yet.
The Safeguarding Americans’ Private Records Act of 2020, introduced by a bipartisan group of members including Sens. Wyden (D-Ore.) and Daines (R-Mont.), is a strong first step. The bill is a response to the spying abuses that seem to pile up by the day — the collection of over a billion call records, spying on a prominent Trump advisor based on flawed evidence, and use of extraordinary measures to prevent courts from judging the legality of the government’s practices.
There are many things to like about the bill.
For one, it makes many strong reforms to Section 215 of the
Patriot Act — the infamous law that was used by the Bush and Obama
administrations to collect the call records of nearly every single American.
The bill puts a definitive end to the call record program, which was recently suspended by the
NSA amid a cascade of reports revealing unauthorized record collections and
legal violations. The bill also heightens the legal standard that the
government must meet to collect records under Section 215 and rightly requires
the government to purge those records within three years, with limited
exceptions.
In addition to reforming Section 215, the bill also attempts to rein
in other national security authorities that the government has abused. For
example, it inserts a sunset into the Justice Department’s “National Security
Letter” administrative subpoena authorities, which the government has often misused
to collect information in non-terrorism cases and pressure companies to turn
over information that the government should only be demanding with a court-ordered
warrant in hand. Such a sunset will rightly prompt oversight by Congress and a
debate over whether these provisions should be permitted to continue at
all.
Moreover, the bill takes a first step towards ensuring that individuals
trapped in the government’s surveillance regime can better exercise their
constitutional rights. In particular, the bill requires the government to notify
individuals in cases where information “obtained” or “derived” from Section 215
collection is used against them. It also defines the meaning of “derived,” in
FISA, to prevent the government from engaging in legal gymnastics and evading
its notice obligations.
Finally, the bill takes an initial step towards reforming the
secretive, one-sided intelligence court.
The Carter Page debacle brought the deficiencies of the court into stark
relief: despite numerous omissions and inaccuracies, the FISA court approved an
initial application and three subsequent renewal applications targeting the
Trump campaign advisor for surveillance. To help prevent these types of abuses
in the future, the bill would enhance the power of amici
curiae — “friends of the court” whom the FISC currently appoint in a narrow
number of novel and significant cases — to raise concerns in a larger subset of
proceedings or to recommend a case review by a higher court. In addition, the
bill would put in place several added transparency measures to give the public
a better understanding of how the government is using the Patriot Act and other
spying powers.
Despite these strong provisions, the proposed bill is far from
perfect and members of Congress should address its gaps.
For one, the bill fails to fully protect the rights of
defendants by ensuring they have access to FISA applications and orders in
cases where intelligence information is used against them. If, like Carter
Page, someone was improperly surveilled on the basis of government
misstatements or omissions, they should have the ability to prove the
government was wrong. Along the same lines, the bill does nothing to ensure
that individuals who are spied on — but never prosecuted — are notified. Criminal
statutes like the Wiretap Act have long required after-the-fact notice to
surveillance targets, with provisions designed to protect ongoing
investigations. There is no reason that
a similar requirement should not exist in the intelligence context.
Second, Congress needs to place greater limits on the Patriot Act
and other surveillance powers to strengthen First Amendment protections and ensure
intelligence authorities are not abusing the laws to discriminate on the basis
of race, ethnicity, national origin, and other protected characteristics.
Third, while the bill makes a notable effort to limit the types of
records that can be obtained under Section 215 — prohibiting the collection of
cell site location information, GPS information, and browsing history, among
others — this language should be strengthened. Congress must make crystal clear
that the government cannot use Section 215 to obtain other types of location
information or sensitive records, like tax returns or medical records. Under
Section 215, the government can obtain large quantities of records by merely
showing that they are “relevant” to a terrorism or counterintelligence
investigation. This standard is much
weaker than the probable cause standard required by warrant. Thus, in cases where the government seeks
these sensitive records, they should be required to meet a higher evidentiary
threshold.
Finally, additional reforms are needed to fully empower the FISA
court amici and tackle the deficiencies within the intelligence courts.
Elements from a recent bill sponsored
by Reps. Nunes (D-Calif.), Stewart (R-Utah), and other Republicans should be
incorporated, including language requiring amici participation in proceedings
targeting Americans, directing the amici to assess the sufficiency of evidence,
and increasing transparency over the court’s proceedings.
The clock is ticking — and it’s past time for Congress to pass
these critical reforms.