The most significant piece of intelligence reform legislation drafted this year just met its demise last night. The USA FREEDOM Act, which sought to reform aspects of the U.S. government’s surveillance capabilities, died after its supporters were unable to overcome a procedural vote to end a Republican filibuster.
Conventional wisdom says since Congress failed to pass surveillance reform in the lame duck session, it will be forced to do so early next year when three key provisions of the Foreign Intelligence Surveillance Act (FISA) are scheduled to sunset. Bookmakers and policy wonks predict the law’s pending expiration in June will compel Congress to act before America’s intelligence agencies completely lose its surveillance authorities.
Odds are that a Republican-controlled Congress won’t allow post-9/11 FISA reforms to lapse.
That said, it’s worth examining the premise here and first asking what capabilities will be lost if these provisions indeed expire. Is that loss sufficient to compel action? And how does expiration of those authorities compare to the reform of authorities proposed in the USA FREEDOM Act? What follows is an analysis of one of those expiring provisions—Section 215 of the USA PATRIOT Act. My perhaps predictable bottom line is that complete expiration would indeed be a poor outcome. Reforming the law should prove to be far more satisfactory to both surveillance supporters and opponents.
Section 215 Expiration
Section 215 of the USA PATRIOT Act, which amended FISA in October 2001, establishes NSA’s authority to collect business records, including call detail records. It has become controversial in the wake of Snowden disclosures because it provided the legal authority for NSA’s bulk phone records program. Under that authority, NSA gained access to vast amounts of call detail records from companies like Verizon and other U.S. telephone service providers.
Section 215 replaced a 1998 amendment to FISA that first established the authority to collect a much narrower set of business records. The 2001 amendment expanded both the type of records that could be requested and the scope of those requests. The USA FREEDOM Act would have amended Section 215 by narrowing the scope of collection (i.e. banning bulk collection) and by clarifying the type of records that can be sought.
If Section 215 is allowed to expire, the law would revert to the language from the 1998 amendment. To understand those implications, let’s examine prospective changes to both the scope and type of collection. Here is the relevant language that defines the scope of records requests in past and current law and in the Senate version of the USA FREEDOM Act:
Previous Law: Requests must have “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.”
Current Law: Request must have “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation…”
The USA FREEDOM Act: Requests must have “a statement of facts showing that…[among other things] there are reasonable grounds to believe that the call detail records sought to be produced based on [a] specific selection term…”
The term “relevant” in current law has been interpreted broadly and is what grants NSA the authority to request all Americans’ phone records under the rationale that a small portion of those records are important to terrorism investigations. In contrast, the language in the USA FREEDOM Act and in previous law would limit the scope of requests.
By requiring that the call detail records sought be based on a “specific selection terms,” the new language would disallow overly broad requests for call records. Previous law would similarly narrow requests by requiring “specific and articulable” facts focused on “the person to whom the records pertain.” Both expiration and reform would essentially ban bulk collection.
The much more important difference between previous law and current and proposed law concerns the type of records that can be sought. Here is the relevant language about that:
Previous Law: Requests “may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records…”
Current Law: Requests “may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items)…”
The USA FREEDOM Act: Requests “may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items)…” [provided that requests comport with other requirements for specificity.]
Under current law and proposed changes from the USA FREEDOM Act, the types of records that can be requested are unenumerated. In contrast, previous law only allows requests for four specific types of business records (from common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities). It is far more restrictive and, by my reading, would NOT allow for records requests to Verizon and other phone companies.
While phone companies sometimes fall within legal definitions of common carriers, that isn’t the case with the language at issue here. Below are the definitions provided in the law for those entities that may receive business records requests.
The term `common carrier’ means any person or entity transporting people or property by land, rail, water, or air for compensation.
The term `physical storage facility’ means any business or entity that provides space for the storage of goods or materials, or services related to the storage of goods or materials, to the public or any segment thereof.
The term `public accommodation facility’ means any inn, hotel, motel, or other establishment that provides lodging to transient guests.
The term `vehicle rental facility’ means any person or entity that provides vehicles for rent, lease, loan, or other similar use to the public or any segment thereof.
If I am interpreting the language correctly, these four categories don’t seem to cover companies like Verizon.
Section 215’s expiration would not just eliminate bulk collection by narrowing the scope of requests. Because the type of records that can be collected is so narrow, it would also eliminate targeted collection of call detail records from companies like Verizon.
This alone should be sufficient to compel Congress to act. While I have at times been critical of bulk collection, I think targeted collection remains one of the best means to maximize intelligence community efficacy and to strike a better balance between security and civil liberties. Targeted approaches are where we get the most intelligence bang for our buck with the least infringement on privacy. Allowing Section 215 to expire, and in so doing eliminating targeted collection, would be just plain foolish.
For additional background on the two other expiring FISA amendments (the “lone wolf” and “roving wiretap” provisions), check out the paper by my former CRS colleague Edward Liu: Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015.