March 11, 2020

H.R. 6172 – USA Freedom Reauthorization Act

NOTEWORTHY

Background: Four major authorities of the Foreign Intelligence Surveillance Act will lapse on March 15 unless Congress reauthorizes them. These are generally referred to as the “business records” provision, the “call detail records” authority, the “roving wiretaps” provision, and the “lone wolf” targeting provision. If these authorities of FISA lapse, the United States intelligence surveillance programs would mostly revert to their pre-9/11 status, reducing the federal government’s powers to investigate terrorism.

Floor Situation: On March 11, 2020, the House of Representatives passed H.R.6172 – the USA FREEDOM Reauthorization Act – by a vote of 278 to 136. The Senate will consider this legislation as soon as this week.

Executive Summary: The USA FREEDOM Reauthorization Act of 2020 prohibits the government from using FISA authority to collect call details records on an ongoing basis and prohibits the use of tangible business records to obtain cell site location and global positioning system location, with exception. This act extends the authorization for the reformed expiring FISA authorities, along with the “roving wiretap” authorities and “lone wolf” provision to December 1, 2023. It also requires the attorney general to approve a FISA application to surveil any elected federal officials and candidates for federal office and increases the penalty for making false statements to the Foreign Intelligence Surveillance Court from five to eight years imprisonment. Provisions in the legislation also require extensive reporting on FISA applications, FISC and Foreign Intelligence Surveillance Court of Review decisions, and investigative techniques used by the federal government.

OVERVIEW OF THE ISSUE

Congress passed FISA in 1978 to authorize government agencies to gather foreign intelligence by electronic surveillance if approved by the FISC. After the 9/11 terrorist attacks, Congress passed the USA PATRIOT Act to modernize and expand the government’s surveillance capabilities. In 2015, Congress passed the USA FREEDOM Act to address perceived issues with the government’s collection of telephone records.

CONSIDERATION ON THE BILL

Senate Majority Leader Mitch McConnell (R-KY), Majority Whip John Thune (R-SD), Judiciary Committee Chairman Lindsey Graham (R-SC), Intelligence Committee Chairman Richard Burr (R-NC), and Senator John Cornyn (R-TX) issued a statement of support on the USA FREEDOM Reauthorization Act of 2020:

‘A wide bipartisan majority in the House of Representatives has passed important legislation to reauthorize critical national security tools under the Foreign Intelligence Surveillance Act. We strongly support this legislation and urge all of our Senate colleagues to join us.

‘Our nation’s national security professionals and intelligence community work every day to confront grave threats, protect American lives from foreign terrorism, and counter espionage by hostile powers such as China and Russia. They are not complacent, and Congress must not be either. The safety and security which these regularly-used authorities have helped preserve should not be misunderstood as evidence they are no longer needed. To the contrary, it is evidence of their necessity.

‘This legislation balances the need to reauthorize these critical authorities with the need for tailored reforms to increase accountability. The 2016 election made it abundantly clear that the FISA process is not perfect. We commend House Republicans for working closely with Attorney General Barr to craft a bill that contains concrete changes to address the abuses of 2016 without jeopardizing the resources that keep Americans safe.

‘We applaud the bipartisan House passage of this legislation and look forward to voting to pass it in the Senate as soon as possible.’

NOTABLE BILL PROVISIONS

Title I – FISA Business Records

Title I amends provisions within section 215 of the Patriot Act in 50 USC 1861, also known as the business records provisions. 

Section 101

Repeals and prohibits the call detail records program which is currently not operational. NSA terminated this program in 2019.

Section 102

Prohibits authorization for the federal government to obtain business records if there is a reasonable expectation of privacy and when a warrant would otherwise be required.

Prevents use of this authority to obtain cell site location information and GPS location data though the government could use FISA Title I electronic surveillance authorities for location data.

Section 103

Requires the government to notify people in a trial or proceeding if the government has obtained information under this authority. This provision has a waiver that would allow the government to withhold notification if needed on national security grounds.

Section 104

Limits the retention of business records to five years, with some exceptions including to protect foreign intelligence, counterintelligence, imminent threats to life, and national security.

Title II – Accuracy and Integrity of FISA Process

Title II amends provisions in 50 USC 1804 regarding applications for court orders of foreign intelligence surveillance.

Section 201

Requires applications for court orders to certify that the government has been apprised of any information which would question the accuracy of the assessment or raise doubts about the findings included in the application.

Section 202

Requires certain FISA applications to describe other investigative techniques carried out before making the application.

Section 203

Requires the attorney general to approve, in writing, any application for electronic surveillance or physical search for an elected federal official or a candidate in a federal election.

Sections 204, 205, and 206

Increase the penalty for false declarations to the FISA court from five to eight years and specifically list these false statements as a federal crime. Federal employees or contractors can also be subject to adverse removal or suspension for misconduct before the FISC.

Title III – Foreign Intelligence Surveillance Court

Title III amends provisions in law regarding declassification of decisions, orders, and opinions, and makes several reforms to the amicus representation before the FISC.

Section 301

Requires the director of national intelligence to review and release declassified versions of FISC and FISCR decisions, orders, and opinions of the FISC within 180 days. This requirement specifically applies to decisions, orders, and opinions that involve a significant or novel legal interpretation or result from a proceeding involving an amicus.

Section 302

Provides for additional amicus representation before the FISC for significant or novel legal interpretations, First Amendment activities, and legal questions certified to the FISCR, unless the FISC finds amicus appointment is not appropriate.

Section 303

Allows for the FISC and FISCR to hire independent legal advisors to assist the courts.

Section 304

Requires the FISC to store proceeding transcripts and maintain records of communication between the Department of Justice and the FISC.

Section 305

Expands current reporting requirements to include reports on the number of times the attorney general uses emergency authority for business records and was denied by the courts and the number of certifications to the FISCR and the number of requests for certification made to the FISC or FISCR.

Title IV – Transparency, Sunsets, and Other Matters

Title IV includes provisions regarding transparency, congressional oversight, and sunset provisions.

Section 401

Clarifies that nothing in this law shall prevent the congressional intelligence committees from receiving FISC materials upon request.

Section 402

Mandates each agency that submits applications to the FISC to have a compliance officer.

Section 403

Requires the attorney general publicly report on how the government ensures that a FISA-related investigation of a United States person complies with current law and does not occur ‘‘solely upon the basis of activities protected by the first amendment to the Constitution.’’

Section 404

Requires the FBI to report on queries that concern a known U.S. Person or are reasonably likely to identify a U.S. Person.

Section 405 and 406

Requires the Privacy and Civil Liberties Oversight Board (PCLOB) to prepare a report for relevant congressional committees on whether FISA targeting decisions were made based on First Amendment activities or other protected characteristics.  Ensures continuity of service for PCLOB Members.

Section 407

Reauthorizes FISA authority in Section 215 (as amended), “roving wiretap,” and “lone wolf” authorities to December 1, 2023.

ADMINISTRATION POSITION

The administration has not yet issued a Statement of Administration Policy.

Attorney General Bill Barr issued the following statement regarding this bill:

“I have reviewed the House FISA bill and support its passage.  The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.

I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals.  The Director and I will promulgate additional, implementing rules that advance these reforms.

It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward.  This legislation deserves broad bi-partisan support.”

COST

A Congressional Budget Office cost estimate has not yet been published.