There has been a lot of ink spilled here and elsewhere about the USA Freedom Act over the last several weeks. Its privacy protections. Its alterations to the government’s surveillance authority. Its increase in material support for terrorism sentences. But I have two much more basic (and very nerdy) questions to ask: What did the USA Freedom Act actually amend and how will the US Code read once all the dust settles? As I explain below, although the USA Freedom Act was written to modify the existing business records provision, the fact that Congress let that provision expire means the USA Freedom Act is now modifying language that no longer exists. Simply put, by waiting until several days after midnight on June 1 to pass the USA Freedom Act, Congress may have ended up creating a series of utterly unnecessary headaches for itself (and everyone else), and potentially opened the door to challenges to business records court orders served on, for example, libraries and schools.
As a preliminary matter, it’s important to remember that the USA Freedom Act is not a standalone set of authorities, but is rather really just a set of instructions on how to change a preexisting statute. It contains detailed orders to remove clauses, add semicolons, reorder the existing text, and (occasionally) to add wholly new provisions to the Foreign Intelligence Surveillance Act (FISA), as that Act has been amended over time. So the question of what text you’re amending really matters for how the federal law will read in the end. If the USA Freedom Act instructs someone to effect changes to a provision that doesn’t exist or requires edits to the wrong section, the US Code won’t make any sense (or at least it will make less sense than it currently does), and the law may create substantive gaps in either its surveillance authorities or constraints.
Back to my questions. The answer to the first one actually seems pretty straightforward. Before Section 215 (and the other two Patriot Act provisions) expired, the Congressional Research Service indicated that if they weren’t reauthorized in some form before the deadline, Sections 501 and 502 of the FISA would revert to their text on the day before the Patriot Act was passed. Indeed, The first reauthorization of the Patriot Act — the USA Patriot Improvement and Reauthorization Act of 2005 — explicitly said the same thing. Easy enough.
Practically speaking, things aren’t so simple. For example, the US Code section that up until Monday morning had contained the business records provision was 50 USC § 1861. As of 12:00am on June 1, however, any parts of the US Code that had expired reverted back to how they read on October 25, 2001, per the terms of the 2005 and subsequent reauthorizations. But rather than containing the business records provision, the old version of Section 1861 contained definitions for terms (and Section 1862 was the FISA business records provision). This raises the second question of how the US Code will read now that the unaltered version of the USA Freedom Act is law.
The answer here is much less clear and is where the US Code is about to get a little weird. Section 601(b) of the USA Freedom Act, for example, amends Section 502(c) of FISA. But Congress’ instructions for modifying that part of the US Code creates a number of blank spots in the text and several nonsequiturs. For example, Section 601(b) says that the word “and” should be struck in subparagraph (A), to insert a semicolon in subparagraph (B), and to add subparagraphs (C) through (E), but neither (A) nor (B) existed in the pre-Patriot Act text. As a result, here’s how it now reads:
1862. Access to certain business records for foreign intelligence and international terrorism investigations
(c) Ex parte judicial order of approval
(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the requirements of this section.
(C) the total number of applications made for orders approving requests for the production of tangible things under section 501 in which the specific selection term does not specifically identify an individual, account, or personal device;
(D) the total number of orders described in subparagraph (C) either granted, modified, or denied; and
(E) with respect to orders described in subparagraph (D) that have been granted or modified, whether the court established under section 103 has directed additional, particularized minimization procedures beyond those adopted pursuant to section 501(g).
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.
Section 1862(c)(1)(A) and (B) are blank because they didn’t exist in the pre-Patriot Act version of the law. USA Freedom simply willed them into existence by calling for edits to them and by creating subparagraphs (C) through (E), which had to be preceded by something. And the rest of Section 1862(c)(1)? The FISA provision that explains the requirements for a court order after a successful application by the government to collect a company’s business records is now nonsensically melded with reporting requirements. And this is far from the only provision that will read like it was edited by Frankenstein. Once you extrapolate the other changes out, some previous reforms — including most of the clarity in business records orders required by the pre-Monday version of Section 1861(c)(2) — evaporate.
The government may also have lost significantly as a result of this confusion. Because Section 215 expired, the government is seemingly back to only being able to request a court order to obtain business records from common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities, per the pre-Patriot Act and current version of Section 1862(a). The USA Freedom Act does not make any substantive edits to the language of that provision, which is more limited than the Section 215 version that allowed collection of “any tangible things” related to an terrorism or intelligence investigation. And therein lies a litigation concern for the government: A librarian or school administrator or director of a medical facility served with a business records order and game for a fight may start asking a lot of serious questions about challenging the order (and maybe even the now-nonsensical nature of the statutory language).
If I were the scrivener tasked with codifying the USA Freedom Act (or a judge trying to sort out what to do if a legal challenge based upon this text arises), I’d be at a loss right now. Congress either didn’t notice or didn’t want to go through the hassle and potential political intrigue of passing a clarifying amendment. So the US Code, if properly amended per Congress’ direction, is going to make very little sense. Of course, courts might gloss over the problem — and assume that Congress meant to modify the statute as it existed before midnight on June 1. But if the text of the statute is plain, what Congress “really meant to do” is supposed to be irrelevant, no?
In other words, it turns out the sunset of those three Patriot Act provisions mattered in more ways than we’ve all been discussing — and that the reforms contained in the USA Freedom Act are going to look a lot stranger in practice because the bill was drafted on the assumption that it would be passed while those provisions were still on the books.