This bill — the USA FREEDOM Reauthorization Act of 2020 — would reauthorize surveillance and reform authorities under the Foreign Intelligence Surveillance Act (FISA), Section 215 of the PATRIOT Act, and the subsequent USA FREEDOM Act through December 1, 2023. Those authorities are slated to expire on March 15, 2020. A breakdown of the reforms included in this legislation can be found below.
FISA BUSINESS RECORDS
This section would repeal the authority to collect call detail records on an ongoing basis and up to two “hops” from the target. It would prohibit the use of Section 215 authorities to collect cell site location information, or the use of Section 215 to collect records or information where a person has a reasonable expectation of privacy and where a warrant would be required to collect the same records or information for law enforcement purposes.
The government would be required to give notice to an individual who is the target of an investigation and whose information is collected under Section 215 when the government intends to use that information in a trial or other proceeding against them. The person would be able to challenge the admission of that evidence. An exception to these provisions would be included if the government demonstrates that providing notice would harm national security.
The government would be prohibited from retaining materials under Section 215 for more than five years.
ACCURACY & INTEGRITY OF FISA PROCESS
For all applications submitted to the Foreign Intelligence Surveillance Court (FISC), the applicant would have to certify that the Dept. of Justice (DOJ) has, to the best of their knowledge, been apprised of all information that might reasonably call the accuracy of the application into question or may otherwise raise doubts with respect to the applicable findings required under law. Applications made under FSA would have to describe other investigative techniques carried out before making the application.
In cases where the target of an application for electronic surveillance or a physical search is a federal official or a candidate in a federal election, the application would be required to state in writing that the Attorney General has approved of the investigation.
Federal officers, employees, or contractors who engage in deliberate misconduct before the FISC or FISC-R (Foreign Intelligence Surveillance Court of Review) would be subject to appropriate adverse actions. A criminal penalty of up to 8 years imprisonment for anyone who knowingly makes a false statement before the FISC or FISC-R would be established; the maximum penalty for unauthorized use of electronic surveillance would be increased from 5 to 8 years; and a penalty of up to 8 years imprisonment would be established for any federal officer, employee, or contractor who intentionally discloses a FISA application or classified information contained in a FISA application to a person not authorized to receive classified information.
This bill would clarify that contempt before the FISC or FISC-R is punishable by up to 6 months imprisonment under the existing criminal contempt statute.
FOREIGN INTELLIGENCE SURVEILLANCE COURT
The Director of National Intelligence (DNI) would be required to conduct a declassification review of significant FISC & FISC-R opinions within 180 days. The types of opinions requiring a declassification review would be expanded to include those involving a novel or significant construction or those that result from a proceeding in which an amicus has been appointed. The requirement to conduct declassification reviews would also apply to opinions issued before the enactment of the USA FREEDOM Act.
The requirement of FISC & FISC-R to appoint an amicus would be expanded to include cases presenting exceptional concerns about the protection of the rights of a U.S. person under the First Amendment, unless the court issues a finding that such an appointment would be inappropriate. An amicus before the FISC could petition the court to certify a question of law for review by the FISC-R; and an amicus before the FISC-R could request that the FISC-R certify a question of law for review before the Supreme Court. Amicus’s ability to access relevant information would be strengthened and amici could seek access to additional information and consult among themselves. Amici would serve 5-year terms and reappointments by the court for good cause would be permitted.
The FISC & FISC-R would be authorized to employ legal advisors to assist the courts in their duties, including by providing advice on issues presented by applications, identifying relevant concerns, and proposing appropriate requirements or conditions for approval of applications. The advisors would report solely to the presiding FISC & FISC-R judges.
Proceedings before the FISC & FISC-R would be required to be transcribed, and transcripts would have to be stored in a file associated with the relevant application or order. The DOJ & FISC would be required to maintain records of all substantive written communications between the Dept. and the court.
TRANSPARENCY, SUNSETS & MISCELLANEOUS
This bill would clarify that nothing in it could be construed as preventing the congressional intelligence committees from receiving FISA applications, orders, and related materials upon request, and in a timely manner.
The head of each agency that submits applications to the FISC would be required to appoint a compliance officer for overseeing that agency’s compliance with FISA, including the targeting, minimization, querying, and accuracy procedures. The compliance officer would be required to conduct routine audits and the agency inspector general would be required to submit annual reviews to the FISC & Congress about the implementation of these provisions.
Within 180 days, the Attorney General would be required to produce a report explaining how the government determines whether information is “obtained or derived” from FISA activities for purposes of FISA’s notice requirements; and a report explaining how the government interprets the prohibition against conducting an investigation of a U.S. person “solely upon the basis of activities protected by the First Amendment to the Constitution.”
Reporting requirements related to instances in which intelligence officials query Section 702 holdings for information about U.S. persons would be strengthened, and the FBI’s exemption from this reporting requirement would be removed.
The Privacy and Civil Liberties Oversight Board (PCLOB) would be required to issue a report regarding the manner in which the government’s use of FISA authorities may be premised on or may impact First Amendment activities or targets’ statuses as members of protected classes. Members of the PCLOB could be reappointed to consecutive terms and continue serving after their terms expired if they choose to do so.
Section 215, “roving wiretap,” and “lone wolf” authorities would be reauthorized through December 1, 2023.