Congress Intelligence Surveillance & Privacy

So What's in that FISA Reform Bill Anyway?

Benjamin Wittes
Wednesday, May 21, 2014, 3:03 PM
Over at the New York Times, Charlie Savage has a good story about civil libertarian irritation over the latest version of the "USA FREEDOM Act," H.R. 3361---which he has also posted.

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Over at the New York Times, Charlie Savage has a good story about civil libertarian irritation over the latest version of the "USA FREEDOM Act," H.R. 3361---which he has also posted. As this seems likely to be the version on which the House of Representatives actually votes, and it reflects input from both the intelligence and judiciary committees, as well as from the administration, I thought it might be useful to give a brief summary of exactly what's in it.  Title I of the bill deals with reform of Section 215 and its associated bulk metadata collection program. In brief, the new bill operates by terminating the authority to collect metadata in bulk but simultaneously providing a means for the FISA court to order production of metadata associated with individual identifiers and those within two hops of those identifiers. The bill would end the current program by amending the FISA business records provision, effective 180 days from the date of its enactment,  to require, in an "application for the production on a daily basis of call detail records" in a counterterrorism investigation, that the records be tied to a "specific selection term," that they be relevant to the investigation, and that the there are facts giving rise to "reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power." The bill then defines "specific selection term" as "a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought. . . ." As Charlie explains in his story, this is actually a loosening of the earlier language, which defined it as “a term used to uniquely describe a person, entity or account.” More generally, the bill prohibits the bulk collection of tangible things by adding in, in a variety of places, requirements that specific selection terms be the basis for production. And it states flatly that "No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term. . . ." Title II, which is very brief, applies the same "specific selection term" requirement to the FISA pen register/trap and trace authority, thereby prohibiting bulk collection under that authority as well. (Remember that this authority was used for bulk email metadata collection under 2011.) And Title V does the same with various national security letter statutes, thereby preventing any of these laws from being used for bulk collection. Title I goes on to give the FISA Court the authority to authorize production of telephone call records for up to 180 days and to allow for extensions of such orders on reapplication. It would allow the government to seek a second set of records (the second "hop") based on those that have a "direct connection" to the "specific selection term." It allows the government to require secrecy of it telecommunications partners, and it would require that minimization procedures provide for "prompt destruction" of all call records that are not legitimate foreign intelligence. The bill would also make the minimization procedures subject to judicial review. Section 102 then creates an emergency exception to this procedure. Under this provision, the attorney general could order production of tangible things if he "reasonably determines that an emergency situation requires" it "before an order authorizing such production can with due diligence be obtained" and that the factual predicate for such an order has been met. He then must inform the court of the emergency invocation and make the application "not later than 7 days" after the emergency order. In keeping with the pattern of recent legislation in the FISA arena, the bill would immunize telecommunications companies for production under orders authorized by the law. And it would authorize compensation by the government for the monetary costs of compliance. Title I closes with a series of requirements for inspector general reports. Title III contains a small number of changes to Section 702. The first of them is designed to tighten the rules governing minimization of incidental collection involving U.S. persons. It requires that minimization procedures, "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information," limit the collection and use of "any communication as to which the sender and all intended recipients are determined to be in the United States at the time of acquisition." It also prohibits the use of any communication that is not "to, from, or about the target" but "is to or from an identifiable United States person believed to be located in the United States"---unless there is "an immediate threat to human life." Title III also forbids the use of information obtained under procedures the FISA Court finds legally deficient in trials or investigations or regulatory proceedings, unless the court establishes minimization procedures for purpose of remediating the problem. Title IV puts forth two other major reforms of the FISA process. First, it allows for the appointment of amicus counsel to add non-governmental voices to FISA deliberations. As Steve complained yesterday, this change is decidedly modest. The court, after all, already has the authority to appoint amici if it chooses. So what's new here is really a change in the default rule. The bill would require that the court "shall appoint" an amicus "in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate." It thus requires nothing of the court and grants it no authority it did not already have, but it does create a legal rule that amicus shall participate unless there's some identifiable reason to exclude a non-governmental voice. It also creates a pool of at least five people capable of serving in this capacity. The bill would also require declassification review of any opinion containing a novel interpretation of law, including any opinion interpreting "specific selection term," and it would require those opinions made public "to the greatest extent practicable." It expressly contemplates release in redacted form, but it also would allow the DNI to waive the requirement if such a waiver is necessary to protect national security or intelligence sources and methods. In such cases, the DNI would be required to release a public statement summarizing the significant legal interpretation at issue. Title VI contains a variety of new public and congressional reporting requirements, including:
  • public data on the number of applications and orders for tangible things;
  • reports to Congress on compliance reviews on tangible thing production;
  • public data on the number of orders entered, modified, and denied under a variety of FISA sections;
  • data on the number of individuals appointed as amici;
It would also permit more aggregate reporting by recipients of FISA production orders and national security letters on the volume and type of orders they receive each year and the number of people covered by them. Finally, Title VII sunsets the new authorities at the end of 2017, meaning the debate will renew at that stage once more.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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