Monday, March 9, 2020

FISA Reform Bill Introduced in the Senate

The following is an unedited press release from Senators Mike Lee (R-UT) and Patrick Leahy (D-VT).

Lee-Leahy Introduce Bipartisan FISA Reform Bill

Mar 09 2020


WASHINGTON – Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) introduced the “USA FREEDOM Extension and Amici Curiae Reform Act” Monday, a bill that provides federal law enforcement the tools they need to protect Americans from foreign powers while also better protecting the civil liberties of all Americans.

“Our Founding Fathers knew well the danger of a government with the power to snoop through the private communications of law-abiding Americans. They included the Fourth Amendment in the Bill of Rights to limit the government’s ability to spy on its citizens,” Sen. Lee said. “This bill brings much needed common sense reforms to our federal government’s foreign surveillance programs so that Americans’ civil liberties are not violated again.”

“I have been working with Senator Lee for years to rein in our nation’s surveillance authorities, which are still clearly too susceptible to abuse,” Sen. Leahy said. “Our legislation today would end the mass collection of call detail records, improve transparency and accountability, and increase privacy and civil liberties protections for all Americans. Recognizing that passing broad surveillance reform can take time we are also introducing a bill that pairs a short extension with significant reform of the amicus curiae process. We look forward to fighting for the comprehensive FISA reform Americans deserve.”

On March 15th, three provisions of the Foreign Intelligence Surveillance Act are scheduled to expire:
  1. The “business records” provision (50 U.S.C. §1861),
  2. The “roving wiretaps” provision (50 U.S.C. §1805(c)(2)(B)), and
  3. The “lone wolf” provision (50 U.S.C. §1801(b)(1)(C)).
With these authorities set to expire within a week, Sens. Leahy and Lee introduced a short three-month extension of the FISA authorities that is coupled with significant reform of the FISA amicus curiae process, the USA FREEDOM Extension and Amici Curiae Reform Act.This bill:
  • Ends the Call Detail Records program.
  • Strengthens First Amendment protections by changing the standard for surveillance under Section 215 based on First Amendment protected activities from “solely” to “substantially”.
  • Prohibits collection of business records without a warrant if law enforcement would require a warrant for the same search.
  • Requires a showing of probable cause that a known U.S. person is an agent of a foreign power or has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law for Section 215 warrants.
  • Excludes the following from the definition of “tangible things” under Section 215: cell site location information, global positioning system (GPS) data, internet web browsing information, internet search history and medical and health-related records.
  • Requires disclosure of decisions by the Foreign Intelligence Surveillance Court (FISC) or the Foreign Intelligence Surveillance Court of Review (FISCR) to include opinions that address the meaning of “specific selection term”, involve amicus curiae, or address the prohibition on obtaining authority for a search that would require law enforcement to obtain a warrant.
  • Requires that a court-appointed amicus have an expertise in privacy and civil liberties.
  • Requires the FISC to appoint an amicus curiae in cases involving a “sensitive investigative matter” defined as involving a public official, candidate, religious or political organization or staff thereof, or news media within the United States or a matter the FISC finds to be of similar sensitive nature.
  • Expands amicus duties from raising general privacy and civil liberties arguments to include raising “legal arguments regarding any colorable privacy or civil liberties interest of any aggrieved United States person”.
  • Allows amicus, once appointed, to raise any issue with the court at any time. Also, allows amicus to petition FISC to certify a question of law to the FISCR and may seek certiorari from the Supreme Court to review any FISCR decision.
  • Provides amicus with access to all court documents, including relevant decisions and precedents relied upon by the government.
  • Requires the government to turn over any “material” information “including any exculpatory information” as part of its application.
  • Requires the Inspector Generals of the intelligence community and DOJ to audit FISA applications from the preceding year.
Finally, the bill extends the expiring Section 215 business records provisions, the roving wiretaps provisions and the lone wolf provisions through December 2023.

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