The House has now passed the USA Freedom Act. If you feel the need to hear Mel Gibson shouting “Freeeedom!” in response, well, don’t thank us. We live to serve:
The clock is now ticking on Senate action before the current Section 215 of the Patriot Act expires at the end of the month. Majority Leader Mitch McConnell wants to move a “clean” reauthorization bill reupping current authorities. In light of the Second Circuit opinion last week and the strong bipartisan House vote in favor of the USA Freedom Act, that option seems non-viable. The House, having just voted overwhelmingly for reform, hardly seems poised to turn around and vote for the status quo---particularly when that status quo seems suddenly legally precarious. The realistic question, then, is whether the Senate can and will pass this bill. Senator Leahy’s version of the USA Freedom Act failed to progress in the Senate last year by two votes. Will that be the same with 215 set to expire? That this bill is suddenly the bill puts weight on another important question, one that hasn’t gotten a lot of attention: what exactly is in this bill? Just because you call something, once again, the USA Freedom Act, does not mean that it’s the same as the last thing called the USA Freedom Act. And this bill differs in subtle---and not so subtle---ways from previous versions of the bill, including from last year’s grand compromise that Senator Leahy brokered with the administration. To cite only the most dramatic example, you might not be expecting when you hear Gibson shout “Freeedom!” and think about all that bulk collection of metadata that’s going to grind to a halt that Title VIII of this bill is entitled “Safety of Maritime Navigation and Nuclear Terrorism Conventions Implementation” and has nothing whatsoever to do with NSA at all. Since this appears to be the bill that will pass---if any bill passes---we thought it would be a good idea to flesh out what it would do and where it parts company with the version that attracted so much attention last year. Coming in at 121 pages, the bill is hardly designed for light perusal; we therefore provide page citations (in parentheses) for some of the key changes in the new bill.
Bulk Collection Under Section 215
Like Senator Leahy’s bill, which we recapped last July, the new House bill would ban bulk collection by requiring that FISA business records applications be based on a “specific selection term.” It also employs a comparably restrictive definition of “specific selection term” as the Leahy bill did. Also like the earlier version, the bill would replace the current 215 metadata program with an authority to demand---with a FISA Court order---call records based on a specific selector term on an ongoing basis, and then get call records two hops out from that initial query. Recall that the previous House bill back in May 2014 had defined the term as one that “specifically identifies a person, account, address, or personal device” in a way that “limit[s] the scope of information or tangible things,” and that the Leahy’s bill would have substantially narrowed that definition to selection terms that “narrowly limit the scope of tangible things sought to the greatest extent reasonably practicable, consistent with the purpose for seeking the tangible things.” The new House bill adopts a similar definition of “specific selection term” as the Leahy bill did, but it makes two minor adjustments. First, under the new House bill’s understanding of “specific selection term,” the government would have to “limit”---though not “narrowly limit”---“the scope of tangible things sought” “to the greatest extent reasonably practicable,” “consistent with the purpose for seeking the tangible things” (17). (Arguably, the change from “narrowly limit” to “limit” merely eliminates redundancy, given that the new House bill retains the “greatest extent reasonably practicable” language.) Second, the new House bill makes clear that the government would be able to “use . . . multiple terms or identifiers” to meet the limitation requirements that inhere in the “specific selection term” definition. The application standard for collection within the first hop of the specific selection term remains the same: Both bills would allow the government to order the production of a first set of call detail records based on a specific selection term so long as the application meets two requirements. First, both the new House bill and Leahy bill would require government applications to state “reasonable grounds to believe that the call detail records sought to be produced based on [a] specific selection term . . . are relevant to [an authorized] investigation.” Second, the government must under both versions of the bill have “a reasonable, articulable suspicion” that a selection term is “associated with a foreign power engaged in international terrorism or activities in preparation therefor, or an agent of a foreign power engaged in international terrorism or activities in preparation therefor” (6). However, where these standards would apply to applications for call detail records on a “daily” basis under Leahy’s bill, it would apply to applications for records on an “ongoing” basis under the House bill (4). The House bill also tightens the application standard at the second hop. Where Leahy’s bill would allow the government to obtain call detail records “with a direct connection” to the previous specific selection term, the new House bill would allow the government to obtain call detail records “using session-identifying information or a telephone calling card number identified by the specific selection term” used to produce call detail records within the first hop (6). As before, the government would under the new House bill have to “adopt minimization procedures that require the prompt destruction of all call detail records” determined not to be “foreign intelligence information” (7). But whereas Section 103 of Leahy’s bill had supplemented this basic requirement with further minimization procedures for “orders in which the specific selection term does not specifically identify an individual, account, or personal device,” the new House bill replaces that additional safeguard with a flexible alternative. Namely, the new House bill specifies that FISA courts may “impose additional, particularized minimization procedures” with respect to any “nonpublicly available information concerning unconsenting United States person” (12). Section 108 of both bills, outlining the Inspector General’s duties to audit the minimization procedures used in making production orders, are the same. The new House bill contains protections---identical to those Leahy bill and the previous House bill---for persons and entities ordered to produce tangible things or provide information, such as internet service providers. Section 105 immunizes such entities from liability, while Section 106 requires the government to compensate such entities for “reasonable expenses incurred” in complying with production orders.
Pen Registers and Trap and Trace Devices
Title II, addressing pen register and trap and trace devices under FISA, bans bulk collection from such programs by imposing the requirement that “a specific selection term . . . be used as the basis for the installation or use of the pen register or trap and trace device.” Here, the new House bill and the Leahy bill are substantially the same in all respects except one. Namely, the new House bill does not contain a provision in the Leahy bill that would allow a FISC judge to “assess compliance with . . . privacy procedures” “[a]t or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved” (27).
National Security Letter Program Reforms
Title V of the new House bill reforms the FBI’s national security letter program in similar fashion as the Leahy bill did. Section 501 of the new House bill is the same as in the Leahy bill, applying the ban on bulk collection and the “specific selection term” requirement to various other provisions in the U.S. Code that would otherwise permit the FBI to issue bulk collection of national security letters. Section 502, discussing the circumstances under which persons issued national security letters may be subject to nondisclosure requirements, is essentially the same under both bills, with only minor differences in the new House bill related to the procedures by which the Attorney General terminates the nondisclosure requirements (54). Section 503 retains the ability for individuals subject to nondisclosure requirements to seek judicial review (59).
FISA Court Reforms
While Title IV of the new House bill preserves the overall structure of the FISA Court reforms proposed in the Leahy bill, it limits the breadth of those reforms in several respects. These are the most important differences between the Senate bill from last year and the bill the House just passed. First, the new House bill gives the FISA Court more control over amici curiae than the Leahy bill would have allowed. For instance, the new House bill restores aspects of the previous House bill, which had been limited under the Leahy bill, that would give FISA Court judges broad authority when designating individuals eligible to serve as amici curiae. Senator Leahy’s bill had sought to require FISA Court judges to designate eligible amici curiae “[i]n consultation with the Privacy and Civil Liberties Oversight board.” The new House bill eliminates that requirement. Instead, it gives judges sole authority to designate eligible amici curiae, while providing that the judges “may consider individuals recommended by any source, including members of the Privacy and Civil LIberties Oversight Board” (30). And where the Leahy bill had referred to potential amici designees as “attorneys” that would “serve as special advocates,” the new House bill refers to potential amici designees as, simply, “individuals.” But both bills require that amici designees possess expertise in privacy and civil liberties, intelligence collection, telecommunications, or other relevant areas, and that amici be eligible for access to the classified information handled by the FISA Court, insofar as such access is necessary for the amici to participate. Amici curiae may appear less frequently in the FISA Court under the new House bill than under the Leahy bill. Separate from having to designate a pool of eligible amici curiae, FISA Court judges are supposed to appoint an individual from that pool to assist in certain matters. Under both the Leahy bill and the new House bill, such matters would include “any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate.” However, the new House bill does not additionally require, as the Leahy bill required, the FISA Court to appoint an amicus to assist in a certification that review of a question of law by the FISA Court of Review is warranted. The new House bill also does not adopt a rule of construction, present in the Leahy bill, that would favor a broader understanding of “novel or significant interpretation of the law” (and thus more frequently require the appointment of amici to assist the FISA Court). The authorities of amici curiae are also somewhat more constrained under the new House bill than under the Leahy bill. On the one hand, the new House bill allows an amicus to provide a wider range of assistance---i.e., not only legal arguments advancing individual privacy and civil liberties, as the Leahy bill required, but also any “legal arguments or information regarding any . . . area relevant to the issue presented to the court.” But while the language in the Leahy bill would have given an appointed amicus broad authority to request informational access and consult with other amici designees, the amicus can do so under the new House bill only if the FISA Court determines it relevant (32). Additionally, an amicus cannot request the FISA Court to “appoint technical and subject matter experts, not employed by the Government” to assist the amicus, as she could have done under the Leahy bill. She can only ask the FISA Court to “designate or appoint additional amici curiae” to be “available to assist” her (32). Finally, the amicus is not entitled to relevant materials from the Attorney General, as the Leahy bill would have required, though the Attorney General may provide such materials at her discretion (33). Second, the scope of appellate review of FISA Court decisions is slightly narrower under the new House bill than the Leahy bill. For one thing, the new House bill adds a limitation not present in the Leahy bill that the FISA Court shall certify for appellate review (by the FISA Court of Review) only those questions of law “that may affect resolution of the matter in controversy” (35). This limitation is in addition to the requirements originally set out in the Leahy bill that certification for review be made when the FISA Court determines there is a “need for uniformity” or review “would serve the interests of justice” (35). The House bill also stipulates a different mechanism for Supreme Court review of FISA Court of Review decisions. Gone is the Leahy bill certification procedure whereby the FISA Court of Review could certify questions of law for review by the Supreme Court. Instead, the new House says simply that FISA Court of Review “shall be considered . . . a court of appeals,” presumably meaning that review of FISA Court of Review decisions is available only by means of petitioning the Supreme Court for a writ of certiorari (35). Third, the House bill would retain the requirement, also found in the Leahy bill and the previous House bill, that the DNI perform declassification review of opinions that “include a significant construction or interpretation” of any provision of law. However, the DNI would be required to make less information publicly available. For instance, the DNI would not have to provide an unclassified summary of “each legal question addressed by the decision and how such question was resolved,” or the “context in which the matter arises,” as the Leahy bill would mandate. Finally, Title IV contains a couple miscellaneous additions regarding FISA Court procedures that are not found in last year’s Leahy bill. For instance, the House bill explicitly allows ex parte contacts---whether by way of exchanging information, exchanging materials, or otherwise communicating---between the FISA Court and other individuals in the government or the amici curiae (34). Moreover, FISA Court judges under the new House bill may allow individuals or organizations to file an amicus brief, permission which the Leahy bill did not explicitly grant (31).
Title VI then goes on to lay out a disclosure framework. Sections 601 and 602 require the government to disclose to Congress, as well as to the public, various items regarding the number of orders and certifications sought and received; estimates of the number of people targeted and affected by surveillance; and number of appointments of amici curiae. In these two sections, the new House bill retains essentially all the disclosure requirements laid out in the Leahy bill, but it also adds a few others. Perhaps most importantly, Section 602 requires the government to make “publicly available on an Internet Web site” certain information about the number of applications for FISA Court orders and the number of appointments of amici curiae (66). Section 603 then deals with the ability of companies that are subject to government production orders to report publicly limited information about the number and the types of orders they have received. The new House bill makes minor changes to the structure of the reports companies may make public, as well as the time period the reports may cover, but the provision retains the essential attributes of the analogous Leahy bill provision.
Section 702 Collection
The new House bill touches upon the targeting of non-United States persons for foreign intelligence purposes in a few places. First, Title III of the new bill addresses 702 collection very briefly. It tracks Title III of Leahy’s bill word for word, which means that the new House bill also eliminates a provision in the previous House bill that emphasized the need to “minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States at the time of acquisition.” Title III further prohibits the use (in trials, investigations, or regulatory proceedings) of information obtained through procedures deemed by a FISA Court to be “deficient,” unless the government “corrects any deficiency” and a FISA Court allows its use under minimization procedures. Second, Section 701 of Title VII---a new addition not found in the Leahy bill---creates a limited emergency exception for the problem of so-called “roamers.” These are people lawful targeted as non-United States persons located outside the United States, who suddenly show up in the United States---where their surveillance is not authorized. The President’s Review Group on Intelligence and Communications Technologies recommended in its report that “the National Security Agency should have a limited statutory emergency authority to continue to track known targets of counterterrorism surveillance when they first enter the United States, until the Foreign Intelligence Surveillance Court has time to issue an order authorizing continuing surveillance inside the United States.” This provision appears to be an effort to implement this recommendation. The new emergency procedures would allow “the head of an element of the intelligence community” to continue targeting a non-United States person, without having to wait for a FISA Court order or Attorney General authorization, for a period “not to exceed 72 hours from the time that the non-United States person is reasonably believed to be located inside the United States” (83). Here’s the key: To invoke these emergency procedures, the head of an element of the intelligence community must “reasonably determine that a lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm to any person” (84). The head must also “promptly” notify the Attorney General of such determination and request the employment of an alternative emergency procedure set out in the Act, such as an emergency electronic surveillance order certified by the Attorney General under 50 U.S.C. § 1805(e) (84).” Sections 702 responds to a different problem: Because FISA is a territorial statute, people who are lawful targets under traditional FISA warrants suddenly become improper targets when they leave the country. In response to this problem, the bill would expand the definition of “agent of a foreign power” as applied to non-United States persons. Such an agent may now include (1) a non-United States person who acts as a “member of a foreign power,” “irrespective of whether the person is inside the United States”; and (2) a non-United States person who “acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States,” even when circumstances do not necessarily indicate that the person is any longer present in the United States. Finally, Section 703 also expands the definition of “agent of a foreign power” to include a non-United States person who “engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets” or “knowingly conspires with” any person in activities related to the “international proliferation of weapons of mass destruction” (87). Notably, Section 705 sneaks in an extension of the scheduled sunset to 2019, whereas the previous Leahy bill had pushed the sunset back to only 2017.
Entirely New Provisions
The bill also contains a Title VIII, which has been almost entirely ignored in the press discussions of the bill. It makes changes to the criminal code to implement several international obligations. The first group of agreements it implements relates to maritime safety: The bill would implement the 2005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and it would also make changes required by the 2005 Protocol to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. The section then goes on to, of all things, nuclear terrorism, amending the criminal code to implement obligations under the International Convention for the Suppression of Acts of Nuclear Terrorism and the amendment to the Convention on the Physical Protection of Nuclear Material. What these provisions are doing in the USA Freedom Act is not entirely clear. They appear also in the current Senate version of the bill, though they did not appear in the Leahy version last year. And they are explained in some detail in the House Judiciary Committee report on the bill---explained that is, except in the sense of identifying what they are doing in the bill in the first place. They appear to have come from an originally stand-alone bill, H.R. 1056, the “Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2015.” In any event, they give you a great opportunity to impress your friends. The next time one of them asks what the USA Freedom Act does---after screaming “Freeeeedom!” at the top of your lungs in homage to Mel Gibson---make sure to point out that the bill would not only end bulk collection of metadata, it also would implement important U.S. international obligations on matters of nuclear terrorism and maritime safety.