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  • Writer's pictureSarah Anderson

Senate FISA Bill Asserts Privacy Limitations

On May 14, 2020, H.R.6172 - USA FREEDOM Reauthorization Act of 2020 passed the U.S. Senate, extending, amending, and curtailing FISA powers. Absent this or similar legislation, certain FBI surveillance tools would expire. Example: the FBI’s ability to obtain FISA orders to collect business records for national security investigations.

Notable changes to FISA include those requiring consultation from privacy experts and heightened reviews of FISA order applications that involve political organizations and U.S. persons. Specifically, the following changes are included in H.R. 6172:

  • To obtain FISA orders to conduct surveillance, the applicant must certify that the Department of Justice (DOJ) does not possess any information doubting the contents of the FISA order application.

  • FISA Courts must appoint at least 1 person with privacy and civil liberties expertise to serve as “amicus curiae” (an outside party that assists in consideration of a case) to consider motions alongside the courts that (1) present new or significant issues of law; (2) concern 1st amendment rights of a U.S. person; (3) concern a sensitive investigative matter; (4) request approval of a new program or technology; (5) request to reauthorize programmatic surveillance; and (6) consider novel civil liberties issues.

  • The definition of "sensitive investigative matter" includes those involving public officials, political candidates, religious or political organizations, domestic news media, or U.S. persons. Therefore, the FISA courts are supposed to consult the privacy and civil liberties experts when motions involve such entities and individuals. The experts shall also have access to the same unredacted materials as the U.S. Govt. in reviewing applications.

The Congressional Research Service summary further states the following:

  • The bill increases criminal penalties for violations related to electronic surveillance conducted under color of law or false statements made to the FISA court (elongating prison sentences from 5 to 8 years).

  • The bill broadens the criteria for when a FISA court decision shall be declassified and requires the declassification review and release of such opinions within 180 days of an opinion being issued.

  • The bill broadens the FISA court's authority to appoint an amicus curiae and expands such amici's powers, such as the power to ask the court to review a decision.

  • Each agency that submits applications to the FISA court shall appoint an officer responsible for compliance with FISA requirements.

  • The bill permanently ends the NSA program that permits the FBI to obtain FISA orders to obtain U.S. citizens phone records in terrorism investigations (although NSA maintains that the program is already defunct). This prohibition against the collection of phone records includes not just call logs, but also any tangible items to which a reasonable expectation of privacy attaches such as text messages and GPS locations.

Politico is likely correct in speculating that certain changes were “inspired in part by Trump’s allegations that the Obama administration improperly used the spying tools to wiretap his former campaign adviser Carter Page during the initial probe of Russian interference in the 2016 election.”

Regardless of the inspiration, the significance of privacy continues to elevate in the U.S. so its inclusion during FISA reviews is likely overdue. However, two primary concerns remain as to the effectiveness of these proposed changes.

First, the FISA Courts are not required to always seek amicus review of the six special circumstances outlined in the bill. Each category allows the Court to evade amicus review if the Court determines it “not appropriate.” “Not appropriate” is not defined and therefore, is purely discretionary. Second, organizations and individuals subject to FISA orders are not permitted to review the applications. While some argue that the allowance would negate the effectiveness of FISA, the opposition seeks equal rights as those available in criminal prosecutions if FISA-gathered evidence is to be introduced.

H.R. 6172 should return to the House of Representatives this week for further review before proceeding to The Oval Office.

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