New Bill Would Take Needed Steps Toward Curbing Mass Surveillance

Last week, Sens. Ron Wyden (D–Oregon) and Steve Daines (R–Montana) along with Reps. Zoe Lofgren (D–California), Warren Davidson (R–Ohio), and Pramila Jayapal (D–Washington) introduced the Safeguarding Americans’ Private Records Act (SAPRA), H.R 5675. This bipartisan legislation includes significant reforms to the government’s foreign intelligence surveillance authorities, including Section 215 of the Patriot Act. Section 215 of the PATRIOT Act allows the government to obtain a secret court order requiring third parties, such as telephone providers, Internet providers, and financial institutions, to hand over business records or any other “tangible thing” deemed “relevant” to an international terrorism, counterespionage, or foreign intelligence investigation. If Congress does not act, Section 215 is set to expire on March 15.

The bill comes at a moment of renewed scrutiny of the government’s use of the Foreign Intelligence Surveillance Act (FISA). A report from the Department of Justice’s Office of the Inspector General released late last year found significant problems in the government’s handling of surveillance of Carter Page, one of President Trump’s former campaign advisors. This renewed bipartisan interest in FISA transparency and accountability — in combination with the March 15 sunset of Section 215 — provides strong incentives for Congress to enact meaningful reform of an all-too secretive and invasive surveillance apparatus.

Congress passed the 2015 USA FREEDOM Act in direct response to revelations that the National Security Agency (NSA) had abused Section 215 to conduct a dragnet surveillance program that siphoned up the records of millions of American’s telephone calls. USA FREEDOM was intended to end bulk and indiscriminate collection using Section 215. It also included important transparency provisions aimed at preventing future surveillance abuses, which are often premised on dubious and one-sided legal arguments made by the intelligence community and adopted by the Foreign Intelligence Surveillance Court (FISC) — the federal court charged with overseeing much of the government’s foreign intelligence surveillance.

Unfortunately, government disclosures made since USA FREEDOM suggest that the law has not fully succeeded in limiting large-scale surveillance or achieved all of its transparency objectives. While SAPRA, the newest reform bill, does not include all of the improvements we’d like to see, it is a strong bill that would build on the progress made in USA FREEDOM. Here are some of the highlights:

Ending the Call Detail Records Program

After it was revealed that the NSA relied on Section 215 to collect information on the phone calls of millions of Americans, the USA Freedom Act limited the scope of the government’s authority to prospectively collect these records. But even the more limited Call Detail Records (CDR) program authorized in USA Freedom was later revealed to have collected records outside of its legislative authority. And last year, due to significant “technical irregularities” and other issues, the NSA announced it was shutting down the CDR program entirely. Nevertheless, the Trump administration asked Congress to renew the CDR authority indefinitely.

SAPRA, however, would make the much-needed reform of entirely removing the CDR authority and clarifying that Section 215 cannot be used to collect any type of records on an ongoing basis. Ending the authority of the CDR program is a necessary conclusion to a program that could not stay within the law and has already reportedly been discontinued. The bill also includes several amendments intended to prevent the government from using Section 215 for indiscriminate collection of other records.

More Transparency Into Secret Court Opinions

USA FREEDOM included a landmark provision that required declassification of significant FISC opinions. The language of the law clearly required declassification of all significant opinions, including those issued before the passage of USA Freedom in 2015. However, the government read the law differently: it believed it was only required to declassify significant FISC opinions issued after USA Freedom was passed. This crabbed reading of USA Freedom left classified nearly forty years of significant decisions outlining the scope of the government’s authority under FISA — a result clearly at odds with USA Freedom’s purpose to end secret surveillance law. We are pleased to see that this bill clarifies that all significant FISC opinions, no matter when they were written, must be declassified and released. It also requires that future opinions be released within six months of the date of decision.

“Tangible Things” and the Impact of Carpenter v. United States

As written, Section 215 allows the government to collect “any tangible thing” if it shows there are “reasonable grounds” to believe those tangible things are “relevant” to a foreign intelligence investigation. This is a much lower standard than a warrant, and we’ve long been concerned that an ambiguous term like “tangible things” could be secretly interpreted to obtain sensitive personal information. We know, for example, that previous requests under Section 215 included cell site location information, which can be used for invasive tracking of individuals’ movements. But the landmark 2018 Supreme Court decision in Carpenter v. United States clarified that individuals maintain a Fourth Amendment expectation of privacy in location data held by third parties, thus requiring a warrant for the government to collect it. Following questioning by Senator Wyden, the intelligence community stated it no longer used Section 215 to collect location data but admitted it hadn’t analyzed how Carpenter applied to Section 215. SAPRA addresses these developments by clarifying that the government cannot warrantlessly collect GPS or cell site location information. It also forbids the government from using Section 215 to collect web browsing or search history, and anything that would “otherwise require a warrant” in criminal investigations.

These are important limitations, but more clarification is still needed. Decisions like Carpenter are relatively rare. Even if several lower courts held that collecting a specific category of information requires a warrant, we’re concerned that the government might argue that this provision isn’t triggered until the Supreme Court says so. That’s why we’d like to see the law be even clearer about the types of information that are outside of Section 215’s authority. We also want to extend some of USA’s Freedom’s limitations on the scope of collection. Specifically, we’d like to see tighter limits on the that the government have a “specific selection term” for the collection of “tangible things.”

Expanding the Role of the FISC Amicus

One of the key improvements in USA Freedom was a requirement that the FISC appoint an amicus to provide the court with a perspective independent of the government’s in cases raising novel or significant legal issues. Over time, however, we’ve learned that the amici appointed by the court have faced various obstacles in their ability to make the strongest case, including lack of access to materials relied on by the government. SAPRA includes helpful reforms to grant amici access to the full range of these materials and to allow them to recommend appeal to the FISA Court of Review and the Supreme Court.

Reporting

USA Freedom requires the intelligence community to publish annual transparency reports detailing the types of surveillance orders it seeks and the numbers of individuals and records affected by this surveillance, but there have been worrying gaps in these reports. A long-standing priority of the civil liberties community has been increased accounting of Americans whose records are collected and searched using warrantless forms of foreign intelligence surveillance, including Section 215 and Section 702. The FBI in particular has refused to count the number of searches of Section 702 databases it conducts using Americans’ personal information, leading to a recent excoriation by the FISC. SAPRA requires that the transparency reports include the number of Americans whose records are collected under 215, as well as the number of US person searches the government does of data collected under Sections 215 and 702.

Notice and Disclosure of Surveillance to Criminal Defendants

Perhaps the most significant reform needed to the government’s foreign intelligence surveillance authority as a whole is the way in which it uses this surveillance to pursue criminal cases.

There are two related issues: government notice to defendants that they were surveilled, and government disclosure to the defense of the surveillance applications. Under so-called “traditional” FISA — targeted surveillance conducted pursuant to a warrant-like process — defendants are supposed to be notified when the government intends to use evidence derived from the surveillance against them. The same is true of warrantless surveillance conducted under Section 702, but we’ve learned that for years the government did not notify defendants as required. This lack of transparency denied defendants basic due process. Meanwhile, the government currently has no obligation to notify defendants whose information was collected under Section 215.

SAPRA partially addresses these problems. First, it requires notification to defendants in cases involving information obtained through Section 215. Second, and more generally, it clarifies that notice to defendants is required whenever the government uses evidence that it would not have otherwise learned had it not used FISA.

But this only addresses half of the problem. Even if a criminal defendant receives notice that FISA surveillance was used, that notice is largely meaningless unless the defendant can see — and then directly challenge — the surveillance that led to the charges. This has been one of EFF’s major priorities when it comes to fighting for FISA reform, and we think any bill that tackles FISA reform in addition to addressing Section 215 should make these changes as well.

FISA sets up a mechanism through which lawyers for defendants who are notified of surveillance can seek disclosure of the underlying surveillance materials relied on by the government. Disclosure of this sort is both required and routine in traditional criminal cases. It is crucial to test the strength of the government’s case and to effectively point out any violations of the Fourth Amendment or other constitutional rights. But in the FISA context, despite the existence of a disclosure mechanism, it has been completely toothless; the history of the law, no defendant has ever successfully obtained disclosure of surveillance materials.

The investigation into surveillance of Carter Page demonstrates why this is a fundamental problem. The Inspector General found numerous defects in the government’s surveillance applications — defects that, had Carter Page been prosecuted, might have led to the suppression of that information in a criminal case against him. But, under the current system, Page and his lawyers never would have seen the applications. And, the government might have been able to obtain a conviction based on potentially illegal and unconstitutional surveillance.

It’s important for Congress to take this opportunity to codify additional due process protections. It’s a miscarriage of justice if a person can be convicted on unlawfully acquired evidence, yet can’t challenge the legality of the surveillance in the first place. Attorneys for defendants in these cases need access to the surveillance materials — it’s a fundamental issue of due process. Unfortunately, SAPRA does not include any reforms to the disclosure provision of FISA. We look forward to working with Congress to ensure that the final FISA reform bill tackles this issue of disclosure.

In 2015, USA FREEDOM was a good first step in restoring privacy protections and creating necessary oversight and transparency into secret government surveillance programs. But in light of subsequent evidence, it’s clear that much more needs to be done. Though we would like to see a few improvements, SAPRA is a strong bill that includes many necessary reforms. We look forward to working with lawmakers to ensure that these and other provisions are enacted into law before March 15.