Leahy Reintroduces Bill to Reform NSA Surveillance Rules
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., reintroduced legislation Monday aimed at reforming and increasing the transparency of government surveillance programs authorized by the Patriot Act and the Foreign Intelligence Surveillance Act, as was expected (CD June 20 p3). The FISA Accountability and Privacy Protection Act (http://1.usa.gov/14tfey9) is based on legislation Leahy offered in 2009 and 2011 that would include expanding public reporting on the use of National Security Letters, requiring the government to show relevance to an authorized investigation to obtain certain records, and amending disclosure rules regarding Section 215 of the Patriot Act. The bill was cosponsored by Sens. Mike Lee, R-Utah; Mark Udall, D-Colo.; Ron Wyden, D-Ore.; Richard Blumenthal, D-Conn.; and Jon Tester, D-Mont.
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Leahy said his bill would “improve the privacy protections and accountability provisions” of the programs and “strengthen oversight and transparency provisions” in other parts of the Patriot Act, in a news release. “The recent public revelations about two classified data collection programs have brought renewed attention to the use of government surveillance powers, which deserve close scrutiny by Congress,” Leahy said. Reports in the Guardian revealed an order by the Foreign Intelligence Surveillance Court (FISC) that gave the National Security Agency authority to collect phone metadata from millions of Verizon subscribers (CD June 7 p1) and the existence of a program authorized by Section 702 of the Foreign Intelligence Surveillance Act that permitted NSA collection of Internet user data from non-U.S. citizens. Leahy said last week at a Senate Judiciary Committee FBI oversight hearing he was concerned that “We have not yet struck the right balance between the intelligence-gathering needs of the FBI, and the civil liberties and privacy rights of Americans.”
The legislation would increase the threshold for obtaining records via Section 215 of the Patriot Act, which permits the government to get court orders to collect “tangible things” when the FBI certifies they're relevant to a government investigation. The legislation would require the government to justify its belief that tangible things sought under Section 215 are relevant to authorized investigations to obtain foreign intelligence information, and require inspector general audits of the use of Section 215 orders and other surveillance authorities under the Patriot Act. The bill would require the government to demonstrate the relevance of records sought under Section 215 to an authorized investigation and a link to one of three categories of a foreign agent, power or group, said a legislative summary. The bill would require the FISC to approve minimization procedures for data collected under Section 215, strike the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders and strike the conclusive presumption in favor of the government on nondisclosure, the summary said.
Leahy’s bill would increase the government’s public reporting on the use of National Security Letters, require the FBI to develop relevance standards for issuing the letters and issue an unclassified report concerning the privacy impact of using such letters. The legislation would also shift the burden to the government to seek a court order for a National Security Letter non-disclosure order and permit recipients of such non-disclosure orders to challenge them in court, according to the legislative summary.
The legislation would shorten the sunset of the FISA Amendments Act from December 2017 to June 2015 to align its expiration with the sunset of Patriot Act authorities, and create a June 2015 sunset on the authorization of national security letters, the legislative summary said. The bill would require the intelligence inspector general to conduct a comprehensive review of surveillance under the FISA Amendments Act and clarify the scope of annual reviews for Section 702 of the Act, the summary said.
"Particularly where Congress has authorized broad surveillance programs that implicate Americans’ Fourth Amendment rights, oversight and transparency are essential,” said Lee in a news release. “This legislation will narrow surveillance authorities where appropriate and help provide the necessary accountability to ensure that Americans’ constitutional rights are respected.”
Electronic Privacy Information Center President Marc Rotenberg called the bill a “step in the right direction,” in an email to us. “There is too much secrecy and too little accountability,” he said. “Senator Leahy’s bill will help restore meaningful oversight.”