The House Judiciary Committee held a hearing Sept. 18 on oversight of the Foreign Intelligence Surveillance Act (FISA), examining specifically whether to reauthorize four provisions of the act set to expire in December. One could be forgiven for missing the hearing amidst the deluge of news this week. And it was anyone’s guess going into the hearing whether it would consist of a substantive discussion of FISA, or whether committee Republicans would simply exploit the opportunity to continue to decry alleged government abuses of the surveillance law in the form of the FBI’s now-declassified applications to surveil former Trump campaign foreign policy adviser Carter Page.
Predictably, Republicans protested the Carter Page FISA applications throughout the hearing, eliciting rebuttals from a number of Democrats who defended the integrity of the applications and the intelligence community’s conduct. At moments, though, the hearing offered more than partisan bickering. It presented a window into how committee members might vote on the provisions up for reauthorization, addressed the role of amici curiae in the FISA Court (FISC) and highlighted potential FISA reforms of interest to lawmakers.
The committee heard testimony from three witnesses: Brad Wiegmann, a deputy assistant attorney general in the Justice Department’s national security division; Michael Orlando, the deputy assistant director of the FBI’s counterterrorism division; and Susan Morgan, who has worked on operations at the National Security Agency (NSA) for 18 years. The witnesses argued for the permanent reauthorization of four FISA provisions: the “roving wiretap” provision, the “business records” provision, the “lone wolf” provision, and the Call Detail Records (CDR) program.
The significance of the witnesses’ support for the permanent reauthorization of these authorities, rather than the temporary reauthorization the committee is considering, was not lost on the committee’s chairman, Rep. Jerrold Nadler. In his opening remarks, Nadler noted that Congress intentionally attached “sunsetting provisions” to the aforementioned FISA authorities to “provide this Committee and other committees an important opportunity to review how these laws are used and to conduct the kind of oversight that we are doing here today.” It seems highly unlikely that the committee would voluntarily surrender this oversight capacity by indefinitely reauthorizing the FISA provisions in question.
The Provisions Set to Expire
- The “Roving Wiretap” Provision
As Brad Wiegmann explained in his testimony, FISA’s “roving wiretap” provision allows the government to respond quickly to targets trying to evade electronic surveillance, for instance, by repeatedly switching their cell phone provider. When the FISC approves a typical—i.e., nonroving—wiretap, it issues an order to the government and a separate, secondary order to a third party (such as a cell phone provider), instructing the third party to aid the government with the wiretap. If the target switches cell phone providers, the government must return to the FISC with a new application to obtain an altogether new set of orders to surveil the target. However, if the government can demonstrate that a target will try to elude surveillance and the FISC accordingly approves a roving wiretap application, the court issues an order to the government and a generic secondary order that the government is permitted to serve (for instance) on a target’s new cell phone provider without having to return to the court for a new set of orders. This provision, codified at 50 U.S.C. §1805(c)(2)(B), increases the flexibility of the government’s response to efforts to avoid surveillance and has been a part of FISA since 2001.
- The “Business Records” Provision
Also part of FISA since 2001, the “business records” provision permits the government to apply to the FISC for orders compelling the production of records—such as drivers’ licenses or apartment-leasing records—pertinent to a national security investigation. The provision is codified at 50 U.S.C. §1861 and is also known as Section 215 of the USA Patriot Act.
- The “Lone Wolf” Provision
To electronically surveil someone under FISA, the government must establish through its application to the FISC that there is probable cause to believe the target is an agent of a foreign power. The “lone wolf” provision, codified at 50 U.S.C. §1801(b)(1)(C), amended FISA’s definition of “agent of a foreign power” to include an individual who “engages in international terrorism or activities in preparation wherefore.” The individual need not be directly linked to a particular terrorist organization to fall into this category. As Michael Orlando explained in his testimony before the committee, the “lone wolf” provision seeks to give the government the authority to surveil “actors who are inspired, but not directed by, foreign terrorist groups.” Orlando admitted that the government has not used the provision since its creation in 2004 but maintained that it is an important authority for the government to have, particularly in an era of online radicalization.
- The CDR Program
As amended by the 2015 USA Freedom Act, the NSA’s CDR program allowed the agency to collect certain telephone metadata, known as call detail records. Technical inefficiencies, defects and irregularities with the program, however, meant that NSA collected more records than it was legally authorized to obtain. This caused the agency to decommission the CDR program and to delete all the data collected under it. In a letter to Congress this August, Dan Coats, then the director of national intelligence, urged the legislature to reauthorize the program despite its having been decommissioned. Susan Morgan suggested that NSA’s decommissioning of the program might itself offer Congress a reason to reauthorize CDR, as “that decision shows the Executive Branch is a responsible steward of the authority Congress afforded it.” Both Coats and Morgan emphasized the importance of preserving the CDR program for future use, as there may come a time when the program again becomes necessary to understand “adversaries’ tradecraft and communications habits.”
The Committee’s Questions
- Hostility Toward the CDR Program
The proposed reauthorization of NSA’s CDR program faced close scrutiny from the committee. In his opening questions, Chairman Nadler probed the utility of the program, asking Morgan whether CDR had made a concrete difference in the outcome of a counterterrorism investigation, identified a hitherto unknown terrorist plot or disrupted a terrorist attack. Morgan explained that these metrics are insufficient to measure the value of the program and qualified that she was leery to identify in an open hearing specific instances in which the program had proved valuable. Morgan added that as an intelligence professional, she sought to maintain every tool available to her, for information seemingly unimportant now might become useful later. Unsatisfied by her response, Nadler concluded his questioning by rather bluntly stating that the Trump administration will need to offer a more compelling argument to reauthorize the “perhaps useless” CDR program than “maybe someday it’ll do some good.”
Reps. Pramila Jayapal and Sylvia Garcia similarly pressed Morgan to identify what metrics might be used to determine the concrete value of the program. Along with Rep. Ted Lieu, who took issue with the sweeping nature of NSA’s surveillance under the program, the representatives expressed serious doubts that they would vote to reauthorize CDR.
- The “Lone Wolf” Provision
The “lone wolf” provision faced almost no scrutiny during the hearing. Only at the end of the hearing did a committee member address the statute specifically. Rep. Val Demings asked whether the provision could be used to combat domestic terrorism—something it is definitionally unable to do, as it refers to an individual who “engages in international terrorism or activities in preparation wherefore” (emphasis added). That committee members lodged no complaints about the provision suggests that it faces an easy path to reauthorization.
- Amici Curiae and the FISA Process
Several representatives questioned the government’s witnesses about the role of amici in the FISA application process. As Rep. David Cicilline noted, the USA Freedom Act mandated that the FISC appoint amici in cases involving novel or significant interpretations of law. Statute establishes that amici are “persons who possess expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise” to the FISC (50 U.S.C. § 1803(i)(3)(A)) and “are eligible for access to classified information” (id. § 1803(i)(3)(B)). In 2018, Cicilline observed, the FISC appointed nine amici; in 2017, it appointed no amici. Nevertheless, there were three instances in 2017 in which the court considered appointing amici, but the government withdrew its application or modified it in a way that prompted the court not to appoint an amicus. Cicilline requested a written follow-up from Wiegmann on the specifics of those three cases.
Cicilline continued, asking whether amici can appeal a FISC decision to the FISA Court of Review. Wiegmann explained that while amici can take part in an appeal, it’s unclear whether they have standing to bring the appeal themselves. He promised to get back to Cicilline with an answer after reviewing the relevant appellate mechanism in the statute.
Later in the hearing, Rep. Kelly Armstrong asked why there isn’t an amicus on every single case. Wiegmann observed that this would considerably slow down the process of the FISC, rendering it untenable. Despite the attorney’s misgivings, Armstrong seemed interested in determining a less burdensome way to make the FISA application process more adversarial.
- Amending Section 215
In a quick exchange with Wiegmann, Cicilline observed that FISA Section 702 requires the government to notify a criminal defendant when he or she is being prosecuted on the basis of evidence obtained under Section 702. Cicilline asked Wiegmann if there would be a problem if Congress amended Section 215 to include a similar notification obligation. Wiegmann responded that Section 215 functions similarly to a grand jury subpoena in that it allows the Department of Justice to collect third-party business records. Because no Fourth Amendment-protected interest is at stake in the collection of those records, Wiegmann contended, the department should not have to notify criminal defendants of evidence obtained against them under Section 215.
- The Implications of Carpenter
Two committee members, Reps. Zoe Lofgren and Andrew Biggs asked if and how the Supreme Court’s decision in Carpenter v. United States has impacted foreign intelligence collection under FISA. As Wiegmann noted, the Supreme Court’s decision in Carpenter established that the government must obtain a probable cause warrant to access cell-site location data in criminal cases; the decision did not apply to national security investigations. Thus, while Carpenter is not “controlling,” as he put it, Wiegmann noted that the Justice Department has considered its implications for national security investigations and the collection of business records. Wiegmann declined to elaborate further in an unclassified setting.