Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Monday introduced legislation that would add important reforms and improve certain provisions of the USA PATRIOT Act and FISA Amendments Act. The FISA Accountability and Privacy Protection Act of 2013 will bolster existing privacy safeguards and require greater oversight, transparency, and accountability in connection with the government's expansive domestic surveillance powers.
"The recent public revelations about two classified data collection programs have brought renewed attention to the use of government surveillance powers, which deserve close scrutiny by Congress," Leahy said. "The comprehensive legislation that I am introducing today will not only improve the privacy protections and accountability provisions associated with these authorities, but also strengthen oversight and transparency provisions in other parts of the USA PATRIOT Act."
The bill is cosponsored by Senators Mike Lee (R-Utah), Mark Udall (D-Colo.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Conn.), and Jon Tester (D-Mont.). It closely mirrors legislation that Leahy has championed in the last two Congresses. The bill unveiled Monday would enhance oversight by expanding the reporting requirements and adding further court review of these capabilities. It would allow the government to obtain records using Section 215 orders only when it can establish that the information is relevant to an authorized investigation and somehow linked to a foreign terrorist group or foreign power. It would also keep in place the current June 1, 2015, sunset for roving wiretaps, the "lone wolf" measure, and Section 215 orders in the USA PATRIOT Act, but add a new sunset for National Security Letters.
"Particularly where Congress has authorized broad surveillance programs that implicate Americans' Fourth Amendment rights, oversight and transparency are essential," Lee said. "This legislation will narrow surveillance authorities where appropriate and help provide the necessary accountability to ensure that Americans' constitutional rights are respected."
Additionally, the bipartisan measure would make improvements to the FISA Amendments Act (FAA) by shortening the existing 2017 sunset to align with the PATRIOT Act sunsets, while adding a new requirement for a comprehensive audit by the Inspector General for the Intelligence Community on the impact on the privacy of Americans. The Judiciary Committee last year approved Leahy's measure to incorporate these improvements and extend the expiring FAA surveillance authorities, although Congress ultimately passed a long-term extension without any new reforms.
The text of legislation can be found online.
# # # # #
The FISA Accountability and Privacy Protection Act of 2013
For Background Purposes
Public revelations about two classified data collection programs have brought renewed attention to the powerful Government surveillance authorities contained in the Foreign Intelligence Surveillance Act (FISA), particularly the impact on law-abiding Americans of provisions in the USA PATRIOT Act and the FISA Amendments Act of 2008. The Director of National Intelligence has acknowledged that they are being conducted pursuant to Section 215 of the USA PATRIOT and Section 702 of FISA. The FISA Accountability and Privacy Protection Act of 2013 will improve the privacy protections and accountability provisions associated with these authorities, and also strengthen oversight and transparency with regard to other provisions of the USA PATRIOT Act. Summarized below are some of the highlights of the bill's provisions:
New and Shorter Sunset Provisions to Ensure Proper Oversight
Shortens the sunset for the FISA Amendments Act from December 2017 to June 2015. The June 2015 sunset would align with expiring USA PATRIOT Act provisions, and enable Congress to address these FISA provisions all at once, instead of in a piecemeal fashion.
Adds new June 2015 sunsets on statutes authorizing use of National Security Letters (NSLs).
Higher Standards for PATRIOT Act Surveillance Authorities
Elevates the threshold standard for obtaining records through Section 215 of the USA PATRIOT Act by requiring the government to show relevance to an authorized investigation and a link to one of three categories of a foreign agent, power, or group.
Requires that the Foreign Intelligence Surveillance Court approve minimization procedures for data collected under Section 215.
Requires the government to provide a statement of the facts and circumstances to justify its belief that the Section 215 records for tangible things, or Pen Register and Trap and Trace Devices (PR/TT) sought are relevant to an authorized investigation to obtain foreign intelligence information.
Strikes the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders and strikes the conclusive presumption in favor of the government on nondisclosure.
Requires the FBI to retain an internal statement of facts demonstrating the relevance of information sought to its investigation before it can issue a National Security Letter (NSL).
For "roving" wiretaps, requires law enforcement to identify "with particularity" the target of a wiretap request under FISA.
Increased Transparency and Public Reporting
Expands public reporting on the use of National Security Letters and authorities under the Foreign Intelligence Surveillance Act, including an unclassified report on the impact of the use of these authorities on the privacy of United States persons.
Fixes a constitutional deficiency found by the Second Circuit Court of Appeals in Doe v. Mukasey by shifting the burden to the government to seek a court order for an NSL non-disclosure order, and allows the recipient of such a non-disclosure order to challenge it at any time.
Increased Judicial Review and Inspector General Oversight
Requires Inspector General audits on the use of Section 215 orders, NSLs, and other surveillance authorities under the USA PATRIOT Act.
Provides for a comprehensive review of FISA Amendments Act (Section 702) surveillance by the Inspector General of the Intelligence Community (IC IG).
Clarifies the scope of the annual reviews for Section 702 currently required by the law, in order to cover all agencies that have targeting or minimization procedures approved by the FISA Court.