This post, by Policy Analyst and Legislative Assistant Mark M. Jaycox, originally appeared on the Electronic Frontier Foundation website on Sept. 11.
The veil of secrecy around the government’s illegal and unConstitutional use of both Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act (FISA) is being lifted. As a result, Congress has seen a flurry of legislation to try and fix the problems; however, as we’ve been saying since June there are far more questions than answers about the spying. And Congress must create a special investigative committee to find out the answers. Right now, the current investigations are unable to provide the American public with the information it needs.
For now, here’s a quick summary of the bills in Congress drafted after the June leaks that have a chance to go forward. They try to fix Section 215 of the Patriot Act, curtail the secret law being created by the surveillance court overseeing the spying (the Foreign Intelligence Surveillance Court, or FISA court), and change how the FISA court operates. Unfortunately, there is no bill in Congress with prospects of moving forward that tackles Section 702 of FISA — the section used for PRISM.
Section 215 Bills
Here are the bills that focus on trying to fix Section 215 of the Patriot Act:
Senator Patrick Leahy: The FISA Accountability And Privacy Protection Act Of 2013
Leahy’s bill is an overarching bill that includes language to try and stop mass spying, increase the number of reports about the spying and publicly disclose the secret law supposedly justifying the programs. The bill makes sure a Section 215 order must include “specific and articulable facts” that the information is relevant to an investigation and that the order “pertains to” an individual. It’s a good start; however, with the released Administration White Paper, the Leahy language doesn’t look strong enough to stop the abusive use of Section 215. Leahy has said that he will continue to refine the bill as it moves forward. This is good news, as a bill from Senators Mark Udall and Ron Wyden’s uses similar language.
Representatives John Conyers And Justin Amash: The LIBERT-E Act
Conyers and Amash present one of the few Section 215 fixes in the House of Representatives with the potential to move forward. Similar to Senator Leahy’s bill, the bill by Conyers and Amash mandates every order include “specific and articulable facts.” But the bill is also more specific: It adds that an order must “pertain only to an individual” under investigation. Other bills introduced to stop the abuse of Section 215 include bills by Representative Dennis Ross and Representative Michael Fitzpatrick. Both are similar to Conyers’ and Amash’s bill, except that Fitzpatrick includes a requirement that the records sought are “material” to an investigation. Representative Rush Holt also has a bill completely repealing Section 215 and Section 702.
Lastly, Representatives Jim Sensenbrenner and Zoe Lofgren have also announced they plan to propose legislation tackling many of the issues brought forward by the June leaks. Both representatives have been at the forefront of fighting against the Administration’s use of Section 215 to obtain innocent Americans’ calling information, and the Electronic Frontier Foundation is excited to see what they come up with.
Ending Secret Law
Currently, almost all of the decisions and orders by the secret FISA court are unknown to the public. The bills by Leahy, Udall, Merkley Conyers all have sections that create processes for the release of the secret law supposedly justifying the NSA’s programs. But there are also bills in Congress solely dedicated to disclosing the opinions:
Representatives Adam Schiff And Todd Rokita: The Ending Secret Law Act
The bill by Schiff and Rokita compels the Attorney General to release all decisions, orders and opinions with significant legal interpretations of the law. All opinions submitted to Congress before enactment must be released within 180 days, and all opinions submitted to Congress after enactment must be released within 45 days. If the Attorney General decides the opinions cannot be released due to national security, then he must release a summary of the decision. The same bill was introduced in the Senate by Senators Jeff Merkley and Mike Lee, and also in the House by Representative Sheila Jackson-Lee.
Senator Al Franken: The Surveillance Transparency Act Of 2013
There are also bills allowing companies to disclose further details any secret FISA order they receive for customer information. For instance, Franken’s Surveillance Transparency Act of 2013 requires the government to provide more reports to Congress and the public about its use of the Foreign Intelligence Surveillance Act, how many orders were filed and how many individuals it impacted. The bill also ensures companies can disclose similar information every six months.
Representatives Rick Larsen And Justin Amash: The Government Surveillance Transparency Act Of 2013
A bill by Larsen and Amash also seeks to increase reporting on how the government uses FISA. The bill, HR 2736, requires in aggregate numbers the number of orders the government filed using the Foreign Intelligence Surveillance Act, the number of people impacted by the orders and a general description of the information sought by the order.
Restructuring The FISA Court
Lastly, there are bills that seek to reorganize the FISA court. Currently, the judges on the court are selected by the Chief Justice of the Supreme Court. The court is also one-sided: When the government requests the calling information for every American, there is no one to argue against it. There are quite a few bills that seek to restructure and fix the FISA Court.
Senator Richard Blumenthal: The FISA Court Reform Act Of 2013 And The FISA Court Judge Selection Reform Act
Blumenthal has introduced two bills, S 1460 and S 1467 to change how the FISA court operates. The first bill establishes an Office of the Special Advocate (OSA) which introduces an adversary to the court. The OSA can contest FISA court orders, appeal orders all the way to the Supreme Court, request declassification of documents and call for public amicus briefs in certain cases.
The second bill, seeks to address the problem of judicial selection. What’s resulted as a result of FISA court judges being picked by the Chief Justice of the Supreme Court is a court heavily slanted toward former prosecutors and the eastern part of the United States. Instead of having a secret selection process, the second bill mandates each chief judge of a Federal circuit to publicly nominate a judge from their circuit to serve on the FISA court.
Other bills touching FISA court structural reform include bills by Schiff (which has the President, with the advice and consent of the Senate, nominating FISA court judges) and Representative Steve Cohen (which has the Chief Justice, and the majority and minority leaders of each house of Congress choosing judges).
More Bills To Follow
All of these bills are a start to tackling many of the problems raised by the leaked files. But none of them fix Section 702 of the Foreign Intelligence Surveillance Act, which the government is using to collect innocent Americans’ communications. As a result of the NSA spying, mass collection of innocent Americans’ information must stop. We look forward to the bills moving through Congress, but a full investigation of the NSA spying by a special Congressional must also occur. Join the more than 100 organizations and half-a-million people pushing Congress to stop the spying and fully investigate it.