DRAFT! Feedback welcome!
Revised version will be published on the Get FISA Right blog
When the Patriot Act was passed in 2001, and again when the FISA Amendment Act was passed in 2008, several key surveillance powers were supposed to “sunset” in a few years unless Congress voted to reauthorize them. Which Congress has, repeatedly, usually without even introducing significant reforms.
Now it’s the USA Freedom Act’s turn to sunset, on December 15 unless it’s renewed – specifically the business records (also known as “Section 215”, including the bulk collection of call records), roving wiretaps, and “lone wolf” provisions.*
As is usually the case in these sunset battles, the administration has proposed making all the authorities permanent; civil liberties advocates have proposed significant reforms; and the likely outcome is somewhere in between. Of course, the impeachment hearings make it hard to predict what’s going to happen — how much energy does anybody have to spend on this? But as I wrote back in 2017
Urgency increases as we get closer to the sunset mechanism’s looming deadline — which in turn often leads to short-term extensions. It’s like watching sausage getting made, although with a lot more scary headlines and phone calls to Congress.
So buckle up! I’ll go into more detail about the situation, but first a few things you can do right now:
- Tell Congress: Shut down unlawful surveillance is an easy-to-use forms to ask your Congressional representatives not to extend Section 215, sponsored by organizations including Demand Progress, Fight for the Future, and MediaJustice)
- Reform 215 and EFF’s Don’t Renew Section 215 Indefinitely also make it easy to contact Congress.
- If you’re on Twitter, Free Press has made it easy to tweet some key Senate Judiciary Committee members.
As things heat up there will no doubt be plenty of opportunities for grassroots activism. So, stay tuned! You can follow Get FISA Right on Twitter and Facebook, and of course there other great organizations working on this issue.
What reformers are asking for
This year, coalitions of digital rights, social justice, and civil liberties groups took the initiative proposing significant reforms, starting with a letter from 35 groups in March. In September, 30 groups followed up with another strong letter to Congress:
We urge you to oppose any legislation that would reauthorize Section 215 of the USA PATRIOT Act unless it repeals the government’s statutory authority to operate the Call Detail Records (“CDR”) program and contains bold reforms to protect individuals against mass surveillance.
There’s support in Congress as well, as seen in a late-October letter from 20 House members, led by Earl Blumenauer (OR-03) and Rashida Tlaib (MI-13).
More recently, a pair of bombshell court cases published in early October found that the FBI’s Use of Surveillance Database Violated Americans’ Privacy Rights and highlighted ongoing law enforcement abuse. In response, 40 groups — including Get FISA Right — have another ask: ensure that legislation also includes reforms to FISA Section 702, in particular prohibiting backdoor searches and “abouts” searches.***
There’s an impressively broad list of groups involved with these various letters, and online campaigns like Tell Congress: Shut down unlawful surveillance: Color of Change, Defending Rights and Dissent, Fight for the Future, Million Hoodies Movement for Justice, Restore the Fourth, EPIC Privacy, the NAACP, Free Press Action, Demand Progress, CD , ACLU, Indivisible, FreedomWorks, and dozens more. Then again, the surveillance-industrial complex also has broad support.
So pro-surveillance forces will do their best to push through an extension without any reforms — or, as the Trump administration proposes, make the powers permanent.
It might get very interesting
With Congress’ winter recess scheduled to start December 12, there aren’t a lot of working days left before. In the past, Congress has passed a short-term extension to buy more time — but that will require a majority, so gives reformers a lot of leverage if they decide to exercise it. So it might get very interesting.
The politics are certainly different than they’ve been in the past. Let’s start with the Republicans, who are currently up in arms over claimed FISA abuses targeting people in the Trump campaign and administration. As Julian Sanchez says,
If you believe a small handful of bad actors managed to so thoroughly game all the layers of oversight that improper political surveillance was even reauthorized by the new administration it targeted, that would be pretty damning proof that the system is broken.
So you’d think that a lot more Republicans would be on the side of reform this time around, even more than the 58 House Republicans who backed the Amash-Lofgren amendments in 2017. Inspector General David Horowitz, who has a good reputation, is expected to issue a report on these abuses. Given the intelligence agencies’ track record, I wouldn’t be at all surprised if he finds they’ve been cutting corners and perhaps even blatantly ignoring the rules, so there’s likely to be more fuel for the fire.
Conversely, with Democrats concerns about abuse of power by the Trump administration, you’d think that some of the 65 House Democrats (including Nancy Pelosi and Adam Schiff) who voted in 2017 to give the Trump administration an extension of powers with no new safeguards** might take a stronger pro-civil liberties stance? On top of that, several Democrats who are usually strong supporters of surveillance are facing primary challengers — like Mckayla Wilkes, going up against Steny Hoyer; and former Get FISA Right member Shahid Buttar, running against Nancy Pelosi. Will that help tip the scales?
The November 6 Senate Judiciary Committee hearing featured a lot of questions about the CDR program**** — even Dianne Feinstein expresse skepticism! It also featured another great example of bad behavior by intelligence agencies; Senators Mike Lee and Patrick Leahy had written to the Justice Department and the Office of the Director of National Intelligence back in December 2018 seeking answers, but still haven’t gotten any responses. Lee was irritated enough that he threatened monthly hearings. Other topics didn’t get a lot of attention; live-tweeting from Marcy Wheeler, Julian Sanchez, and EFF has more detail.
Next steps include committee votes (and perhaps additional hearings) in the House and Senate. Here’s a place where grassroots activism can make a difference, pressuring Congresspeople of both parties. Of course, there’s lots of other stuff going on; even though the Democrat/Libertarian coalition may well have enough votes in the House to get reform, Speaker Pelosi may not want to prioritize this fight right now — or pro-surveillance forces may try to take advantage of the opportunity to sneak something through. We shall see.
Like I said, it should be interesting!
* Bobby Chesney’s Three FISA Authorities Sunset in December: Here’s What You Need to Know, from early this year, is a good discussion of these three provisions. It’s interesting to look back at how these same debates were framed in earlier reauthorization battles; for example, here’s a pair of Julian Sanchez articles from 2009 arguing against renewing roving wiretaps and lone wolves.
** If you’re wondering why this is titled Rapid DNA Act of 2017, well, at some point, for some obscure parliamentary procedure reasons, S. 139 (which was originally the Rapid DNA Act) was completely replaced with the FISA Amendments Reauthorization Act of 2017 but even though the text of the House version of S.139 changed, the title didn’t. So if you try to find the House version of the FISA Amendments Reauthorization Act on congress.gov, you find Devin Nunes’ H.R.4478, which never got voted on. Meanwhile, the Rapid DNA Act that passed the House was H.R. 510. See why I say it’s like watching sausage getting made?
*** Jennifer Stisa Granick and Ashley Gorski have some other good suggested reforms, as well as a detailed analysis, in How to Address Newly Revealed Abuses of Section 702 Surveillance. Marcy Wheeler’s Surveillance Reform Can No Longer Ignore EO 12333 also makes an important point.
**** Susan Landau’s testimony to the PCLOB is a deep dive into the call-records aspect of Section 215, summarized in Is Section 215 No Longer Worth the Effort?. Devlin Bartlett and Ellen Nakashima’s Democrats dubious of Trump administration’s push to renew controversial spy power is from late September, so a little dated, but has a good overview of the landscape.