Today marks two years since enactment of the bipartisan USA FREEDOM Act (USAF), the first major government surveillance reform legislation in decades, and a lot has happened in the law's short life. Most notably, the world did not come to an end with the end of the NSA's bulk collection of Americans’ phone records.
Caroline Lynch served on the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations for ten years, eight years as the Subcommittee's Chief Counsel. She handled the Committee's national security, counterterrorism, and criminal and foreign surveillance portfolios and oversaw the negotiations and drafting of numerous pieces of legislation, including the Email Privacy Act, the USA Freedom Act, and the FISA Amendments Act. She previously served as Chief Counsel to the House Repubican Policy Committee.
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You can always tell when it’s time to reauthorize a portion of the Foreign Intelligence Surveillance Act (FISA) because Congress starts wringing its hands about some aspect of the law. FISA is a law that Capitol Hill loves to hate and hates to love. One minute it’s a critical foreign intelligence tool vital to protecting America’s national security from foreign adversaries and terrorist organizations.
I’m not a fan of sunsets. I don’t mean the glorious sprays of color caused by the setting sun. I’m referring to expiration dates, particularly those attached to intelligence-gathering laws. I’ve long believed that Congress shouldn’t need a countdown clock to perform its oversight of national security programs and that it can amend any law it deems deficient at any time, sunset or no sunset.
On January 9th, Reps. Yoder and Polis re-introduced the Email Privacy Act to update the Electronic Communications Privacy Act (ECPA) (there is no Senate companion bill yet). ECPA sets forth the rules for how federal, state and local government agencies (and foreign governments) obtain electronic communication content and metadata from U.S. service providers.