New NSA Reform Proposal from Sen. Leahy and Rep. Sensenbrenner

While the continued government shutdown has sidelined an estimated 800,000 federal employees and resulted in the cancellation of President Obama’s trip to Asia this weekend, Several members of Congress continue to focus on oversight reform of the NSA surveillance programs.  Earlier this week, for example, the Senate Judiciary Committee held a hearing on “Continued Oversight of the Foreign Intelligence Surveillance Act.”

Perhaps not surprising given Congressional reaction in recent weeks to the Snowden leaks of the NSA’s domestic surveillance activities, the flavor of the month in Congress looks to be legislative proposals to rein in the NSA.   On Monday, Jennifer Granick gave us a critical look at the proposed legislation from Senators Wyden and Udall to reform FISA (copies of the proposed bill and a brief summary are also available).  And as of this morning, as Ruchi mentioned in the News Roundup and Notes, an outline of another draft NSA reform proposal now is being circulated—this time by Senate Judiciary Committee Chairman Patrick Leahy (D-CT) and Representative Jim Sensenbrenner (R-Wis.).

The proposed bill is titled “USA FREEDOM Act” (and yes, in case you are wondering, that is an acronym, for the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act”—kudos to the non-furloughed staffer who came up with that one) and aims:

To rein in the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC.

A few interesting side notes about the authors: First, Rep. Sensenbrenner, the original House author of the USA PATRIOT Act (by the way, also an acronym), is now seeking to rein in the surveillance activities purported to be authorized, at least in part, by the PATRIOT Act.    Second, that Sensenbrenner (a House Republican) and Leahy (a Senate Democrat) are teaming up on this bill may also serve as another interesting example of “The Coming Political Realignment” foretold by Steve last weekend.

The Leahy/Sensenbrenner proposal seeks four major areas of reform:

1. End bulk collection of Americans’ communications records

  • The USA Freedom Act ends bulk collection under Section 215 of the Patriot Act. The bill would require that tangible things sought are relevant to an authorized investigation into international terrorism or clandestine intelligence activities and pertain to (1) a foreign power or agent of a foreign power, (2) the activities of a suspected agent of a foreign power who is the subject of an investigation, or (3) an individual in contact with, or known to, a suspected agent of a foreign power.
  • The bill would also strengthen the prohibition on “reverse targeting” of Americans—that is, targeting a foreigner with the goal of obtaining communications involving an American.
  • The bill requires the government to more aggressively filter and discard information about Americans accidentally collected through PRISM and related programs.

2. Reform the Foreign Intelligence Surveillance Court

  • The USA Freedom Act creates an Office of the Special Advocate (OSA) tasked with promoting privacy interests before the FISA court’s closed proceedings. The OSA will have the authority to appeal decisions of the FISA court. It will be staffed by attorneys who are properly cleared to view the classified information considered by the FISA court.
  • The bill creates new and more robust reporting requirements to ensure that Congress is aware of actions by the FISC and intelligence community as a whole.
  • The bill would grant the Privacy and Civil Liberties Oversight Board subpoena authority to investigate issues related to privacy and national security.

3. Increase Transparency:

  • The USA Freedom Act requires the Attorney General to publicly disclose all FISC decisions issued after July 10, 2003 that contain a significant construction or interpretation of law. Disclosures must include public documents sufficient to: (1) identify each legal question addressed; (2) generally describe the issues; (3) describe the construction and interpretation of a statute, constitutional provision, or other legal authority; and (4) indicate whether the decision departs from a prior decision.
  • Private companies are currently barred from disclosing basic information about their participation in NSA surveillance programs. Under the bill, Internet and telecom companies would be allowed to publicly report an estimate of (1) the number of FISA orders and national security letters received, (2) the number of such orders and letters complied with, and (3) the number of users or accounts on whom information was demanded under the orders and letters.
  • The bill would also require the government to make new public reports on FISA orders. Specifically, the government would be required to make annual or semiannual public reports estimating the total number of individuals and U.S. persons that were subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.

4. National Security Letters

  • The USA Freedom Act adopts a single standard for Section 215 and NSL protection to ensure the Administration doesn’t use different authorities to support bulk collection.
  • The bill adds a sunset date to NSLs requiring that Congress reauthorize the government’s authority thereby ensuring proper congressional review.

We will be following the USA Freedom Act, as well as the other NSA reform proposals, as they continue to make their way through the House and Senate, so stay tuned for further developments as they happen. 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).