February 25, 2020

FISA Reauthorization


KEY TAKEAWAYS

  • Four major authorities of the Foreign Intelligence Surveillance Act will lapse on March 15 unless Congress reauthorizes them.
  • The four are known as the “business records” provision, the “call detail records” authority, the “roving wiretaps” provision, and the “lone wolf” amendment.
  • If these components of FISA lapse, the programs would mostly revert to their pre-9/11 status, reducing the federal government’s powers to investigate terrorism.

On March 15, four major authorities of the Foreign Intelligence Surveillance Act are set to lapse. FISA governs the federal government’s collection of information relating to foreign espionage and terrorism. Originally passed in 1978, FISA has been substantially amended over the years, including several times following the 9/11 attacks. Four of the act’s major authorities are set to expire on March 15: the traditional “business records” provision; the “call detail records” authority; the “roving wiretaps” provision; and the “lone wolf” amendment.

Traditional Business Records

The traditional business records provision is also known as Section 215 after the section of the Patriot Act where it appeared. It authorizes the Foreign Intelligence Surveillance Court to issue orders for a third party – for example, a telecommunications company – to produce “tangible things,” forms of evidence including records and documents, for an FBI investigation involving foreign espionage or terrorism. The investigation can target a U.S. person. The FBI must provide a statement of facts showing reasonable grounds to conclude that the tangible things are relevant to the investigation.

If the traditional business records provision sunsets, this part of FISA would revert back to its pre-Patriot Act status. FISC orders could only authorize production of records from specific kinds of businesses, such as common carriers, and the information collected would have to directly concern the investigative target. Currently, the government need only show reasonable grounds to believe that the records are relevant to an investigation.

Call Detail Records

One particular subset of business records, known as call detail records, emerged as a subject of controversy in 2013. CDRs are generally non-content metadata of telephone communications, such as the duration of the call.

In 2015, Congress responded to concerns about bulk telephone metadata collection that was occurring under the authority of Section 215 by amending the section to prohibit bulk collection. Currently, the FBI can still collect CDRs involving specific people or devices under investigation, but not build vast collections for potential later use.  

Critics allege that the provision is rarely used and might still lead to abuse. They point to the National Security Agency’s 2018 self-reported deletion of CDRs that it improperly and accidentally collected. While publicly available data is limited, proponents claim that CDRs have aided in dozens of terrorism investigations and cited at least one publicly known example.

Roving Wiretaps

The roving wiretaps provision allows a FISC order for electronic surveillance to apply to multiple cell-phone numbers used by the same investigative target. This provision is intended, among other things, to avoid the need for a specific warrant every time a target cycles through a “burner” cell phone.

Proponents of the provision accurately note that some form of roving wiretaps is a practical necessity to overcome simple counter-surveillance methods like burner phones. While roving wiretaps in ordinary criminal law are less controversial, critics allege that obtaining roving wiretaps under FISA is different because FISA warrants require only a description of the target, not a specific identity. These critics allege that roving wiretaps under FISA might violate the Fourth Amendment’s requirements that warrants be issued only for “probable cause” and “particularly describing” the affected person.

If the roving wiretaps provision expires, the pre-Patriot Act language would be in effect again. Separate FISC orders would be needed to surveil a target who cycles rapidly through devices, and the orders would have to name specific third parties to provide assistance to the federal government.

Lone Wolf Amendment

FISA surveillance orders originally could only target agents of a specific foreign power or terrorist organization. When FBI agents detained Zacarias Moussaoui on immigration charges in August 2001 after he had suspiciously enrolled in flight training, investigators wanted to search his laptop, suspecting he might be involved in terrorism. However, they did not have information tying him to a specific foreign power, so they ultimately did not carry out the search. Moussaoui later pleaded guilty to being part of the 9/11 conspiracy. In 2004, Congress amended FISA in the Intelligence Reform and Terrorism Prevention Act to apply to non-U.S. persons who engage “in international terrorism or activities in preparation therefor.”

If the lone wolf provision expires, the government would once again have to prove connections to specific organizations in order to obtain surveillance orders under Title I of FISA. Critics allege that the provision will never be used, but proponents argue it is important to keep the authority for possible future use, citing the Moussaoui example.