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house Bill H.R. 6172

Reauthorizing Gov’t Surveillance Authorities Before They Expire & Reforming the FISA Process

Argument in favor

This bipartisan bill contains significant reforms to both the federal government’s surveillance powers aimed at protecting civil liberties, and to the FISA process to ensure that agencies aren’t misleading the courts so that they can spy on average American citizens or political campaigns. It may not be perfect, but this bill prevents a lapse in these authorities that could jeopardize national security.

jimK's Opinion
···
03/11/2020
I support this legislation which reforms the controls on the FISA process to ensure that authorizing courts are not misled and that the surveillance requests are warranted. Yes, there have been abuses and this legislation is a step in the right direction to correct those abuses while still providing a useful tool to protect the country from foreign influence. I do not think that it is perfect but it does address many of the issues currently raised, and is definitely a step in the right direction.
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Leslie's Opinion
···
03/11/2020
Probably needs updating since things have changed since 9-11 when most of this was shaped.
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Kenneth's Opinion
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03/12/2020
This is the first step in eliminating the FISA court system. "Secret" court systems do not work in a democracy.
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Argument opposed

This bill may be bipartisan, but it doesn’t go far enough in reforming the government’s surveillance authorities to ensure that agencies like the FBI don’t mislead FISA courts and engage in illegal surveillance of American citizens. If more robust protections for civil liberties can’t be added to the package, the surveillance authorities should expire until a deal is reached.

KansasTamale's Opinion
···
03/11/2020
This bill doesn’t go far enough. The Civil Liberties of the people have taken a hit since this legislation was introduced and made law to supposedly protect us from foreign terrorists. It has been seen that since 9/11 that the DOMESTIC TERRORISTS ARE MORE OF THREAT THAN FOREIGN. Much of this law goes far beyond what the forefathers meant for this country. It is time to fix it correctly which this Bill DOES NOT DO!!!
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Kathy's Opinion
···
03/11/2020
Adjustments absolutely need to be made or it needs to expire! We have had abuse on a grand scale that has effected too many Americans.
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burrkitty's Opinion
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03/11/2020
No way. The PATRIOT act was a mistake and has been abused a LOT. I’m definitely not in favor of all this mass surveillance! WE HAVE A RIGHT TO PRIVACY!! Let it expire.
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bill Progress


  • Not enacted
    The President has not signed this bill
  • The senate has not voted
  • The house Passed March 11th, 2020
    Roll Call Vote 278 Yea / 136 Nay
    IntroducedMarch 10th, 2020

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What is House Bill H.R. 6172?

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.

Impact

People surveilled using these authorities; intelligence & law enforcement agencies; the FISC & FISC-R; and Congress.

Cost of House Bill H.R. 6172

A CBO cost estimate is unavailable.

More Information

In-DepthHouse Judiciary Chairman Jerry Nadler (D-NY) & Intelligence Chairman Adam Schiff (D-CA) introduced this legislation to reauthorize the federal government’s surveillance authorities and issued the following statement:

“Along with House Leadership, we have engaged in bipartisan negotiations with input from many members to get to a deal on reforming FISA while reauthorizing important national security provisions set to expire this weekend. Through those negotiations, we have been able to incorporate significant reforms to increase civil liberty and privacy protections to the base bill, and additional provisions that should garner bipartisan support. As with any negotiation, no one side is getting everything they want, but we believe it’s important to enhance transparency and privacy safeguards whenever possible. This bill would build on the achievements of the USA Freedom Act to increase the oversight and transparency of the FISA process. We look forward to working with our Members to pass this legislation, which would mark a significant step forward for civil liberties and avoid the possibility of a less progressive Senate extension or the expiration of authorities that are vital to national security.”

Attorney General William Barr expressed his support for this reauthorization bill:

“I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people. I am pleased that the bill contains a number [of] provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms. It is of the utmost importance that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward.”

The co-chairs of the Congressional Progressive Caucus, Reps. Pramila Jayapal (D-WA) and Mark Pocan (D-WI) released a statement that they oppose the reauthorization:

“For months, we worked hard to secure vital reforms needed to overhaul the expansive surveillance powers authorized in Section 215 and the Foreign Intelligence Surveillance Act. Unfortunately, the final bill falls short of the reforms we requested last fall and are insufficient to protect the civil rights and liberties of the American public. It’s disappointing that Congress will not take this rare bipartisan opportunity to end sweeping, unconstitutional surveillance programs. Given the lack of these critical reforms, we will be voting no on the final legislation this week.”

The conservative House Freedom Caucus released a statement that it will officially oppose this legislation:

“Recent revelations that FISA was severely and repeatedly used to spy on a presidential campaign are beyond the pale--if the government can misuse this system to spy on a presidential campaign, they can surely do it to any other American citizen. As Congress considers reauthorizing FISA, anything short of significant and substantive reforms would betray the trust of the American people. The House Freedom Caucus will oppose any bill that does not meet a Constitutional standard for the the protections of American citizens’ rights. We will also oppose any ‘clean’, short-term reauthorization of the current, harmful version of FISA. Enhanced penalties for abusing the system and additional layers of certification from the Department of Justice and the FBI are insufficient to gain our support, particularly when, to date, no one has been charged with a crime for previous abuses. A proposal for additional scrutiny when elected officials and candidates are the target of investigations similarly misses the point: politicians don’t need more protection from government spying than their fellow citizens. More fundamental changes to standards of evidence and process that mirror as closely as possible our Article III courts are needed to gain our support.”

Of NoteIn response to allegations that the FBI abused its authorities and misled the FISA court in seeking approval for its surveillance of Donald Trump’s 2016 presidential campaign, DOJ Inspector General Michael Horowitz released a report detailing 17 significant errors and omissions on the FBI’s part.

The IG found “seven significant inaccuracies and omissions” in the FBI’s initial application to the FISC for surveillance of Trump campaign advisor Carter Page:

  • The FBI omitted information obtained from another federal agency that had a prior relationship with Carter Page and had approved him as an “operational contact” and that he had provided the agency with information about his prior contacts with Russian intelligence officers.

  • It included a characterization of previous reporting by Christopher Steele as “corroborated and used in criminal proceedings”, which overstated the significance of it and wasn’t approved by Steele’s handling agent. (Steele’s opposition research dossier on Trump was relied upon by the FBI in part to justify the surveillance).

  • The FBI omitted information about the reliability of a key Steele sub-source whom Steele himself told the Crossfire Hurricane team was a “boaster” and an “egoist” who “may engage in some embellishment”.

  • The application incorrectly asserted that Steele didn’t provide information to the press that was used in a Yahoo News article and had only shared his opposition research with the FBI and Fusion GPS (the client he produced the dossier for).

  • The application omitted Papadopoulous’ consensually monitored statements to the FBI denying that anyone associated with the Trump campaign was collaborating with Russia or outside groups like WikiLeaks regarding the release of Hillary Clinton’s emails.

  • The application omitted Page’s consensually monitored statements to the FBI that he had “literally never met” or “said one word to” Paul Manafort, which if true were in tension with claims that Page was participating in a conspiracy with Russia by acting as an intermediary for Manafort on the campaign’s behalf.

  • The application included Page’s consensually monitored statements to the FBI that the agency believed supported its theory that he was a Russian agent, but omitted other statements he made that, if true, contradicted claims he’d met with Russians about the Clinton emails.

The above inaccuracies and omissions were included in all three FISA renewal applications, and the IG found 10 additional significant errors in the renewal applications, including:

  • Omitted information from people who had professional contacts with Steele who said that while he didn’t have a history of reporting in bad faith, he “didn’t always exercise great judgment” and “pursued people with political risk but no intelligence value”.

  • Omitted information obtained that Steele’s reporting was going to the Clinton presidential campaign, that Steele was being paid by Glenn Simpson to discuss his report with the media, and that Steele was “desperate that Donald Trump not get elected and was passionate about him not being the U.S. President”.

  • That the Crossfire Hurricane team failed to update its description of Steele after information providing greater clarity about the political origins and connections of Steele’s reporting became available, including that Simpson was hired by someone associated with the Democratic Party and/or the Democratic National Committee.

  • A failure to correct the assertion that the FBI didn’t believe Steele provided information to the media after Steele made a court filing admitting to his interactions with the media.

  • Omitted an FBI source validation report that found Steele suitable for continued operation but that his past contributions to the FBI criminal program were “minimally corroborated”.

  • Omitted statements made by Steele’s primary sub-source, who the FBI found credible, made statements “raising significant questions about the reliability of allegations included in the FISA applications”, such as that there was “nothing bad” about communications between the Kremlin and the Trump team and that they hadn’t reported Page met with Russians.

  • Omitted Page’s prior relationship with another agency despite being reminded that agency, and the DOJ’s Office of General Counsel altered an email from that agency so that it stated Page was “not a source”, which the FBI relied upon in its final renewal application.

  • Omitted Papadopoulous’ statements denying that the Trump campaign was involved in the DNC email hack.

  • Omitted Joseph Mifsud’s denials that he supplied Papadopoulous with information Papadopoulous shared with a friendly foreign government that the Trump campaign received an offer or suggestion of assistance from Russia.

  • Omitted information indicating that Page played no role in the Republican platform change regarding Russia’s annexation of Ukraine as alleged, which was inconsistent with a factual assertion relied upon to support probable cause in all four FISA applications.



Media:

Summary by Eric Revell

(Photo Credit: iStock.com / batak1)

AKA

USA FREEDOM Reauthorization Act of 2020

Official Title

USA FREEDOM Reauthorization Act of 2020

    I support this legislation which reforms the controls on the FISA process to ensure that authorizing courts are not misled and that the surveillance requests are warranted. Yes, there have been abuses and this legislation is a step in the right direction to correct those abuses while still providing a useful tool to protect the country from foreign influence. I do not think that it is perfect but it does address many of the issues currently raised, and is definitely a step in the right direction.
    Like (52)
    Follow
    Share
    This bill doesn’t go far enough. The Civil Liberties of the people have taken a hit since this legislation was introduced and made law to supposedly protect us from foreign terrorists. It has been seen that since 9/11 that the DOMESTIC TERRORISTS ARE MORE OF THREAT THAN FOREIGN. Much of this law goes far beyond what the forefathers meant for this country. It is time to fix it correctly which this Bill DOES NOT DO!!!
    Like (62)
    Follow
    Share
    Adjustments absolutely need to be made or it needs to expire! We have had abuse on a grand scale that has effected too many Americans.
    Like (39)
    Follow
    Share
    No way. The PATRIOT act was a mistake and has been abused a LOT. I’m definitely not in favor of all this mass surveillance! WE HAVE A RIGHT TO PRIVACY!! Let it expire.
    Like (29)
    Follow
    Share
    Representative: Vote No. We need better Civil Liberties Protections!
    Like (26)
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    End the government’s invasion of our privacy. End the misused and abused FISA court!
    Like (19)
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    No bill of this nature should be passed or approved until all of our civil liberties are restored. Period. If it’s not the government spying on you then it’s a tech company like Amazon, Facebook or Google who then sells the data to the government. Every digital imprint you make is documented. Every conversation you have in proximity to a connected device is recorded. Every purchase you make with a debit or credit card is documented. You are being monitored 24/7. It needs to stop.
    Like (14)
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    This is the first step in eliminating the FISA court system. "Secret" court systems do not work in a democracy.
    Like (13)
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    Probably needs updating since things have changed since 9-11 when most of this was shaped.
    Like (13)
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    Ben Franklin said to give up liberty for security, you end up with neither. This is why oversight is so important by we the people, check and balance is not only required, but is demanded in a free Society!
    Like (11)
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    We always seem to settle. While this bill is a start to the reform needed, it is no where near acceptable. Something as important as this should be done thoroughly and address all the issues with the process, especially noting what went on during and after the 2016 election.
    Like (10)
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    FISA and the Patriot Act allow the government to collect more personal data than is necessary. Letting them expire so something completely new has to be developed is my preference.
    Like (8)
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    Government spying on we the people must stop. The FISA system has been abused and must be eliminated. If a law enforcement official need to spy on a citizen, get a judge to sign off on it like we used to. Much less chance of abuse.
    Like (8)
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    I don’t trust the government, and doubt that this power won’t be abused.
    Like (6)
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    An unnecessary and intrusive invasion of the liberties of American citizens. Born out of illegal programs, this needs to go.
    Like (6)
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    Abolish FISA Court completely. Never again! #MAGA
    Like (6)
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    The Patriot Act was a knee-jerk reaction. It was not well thought through, having the consequence of taking away much of our freedom in pursuit of a modicum of safety. Let it expire.
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    To much evidence of abuse
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    In the past it has been abused by the FBI and CIA leadership. When you were a kid and you got a pellet gun or BB gun and you violated your parents trust that you would use it responsibly, when caught your weapon was taken away from you. Let it expire so it can’t be misused again
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    This is a perfect example of an abused system. If it NEEDS to be here it needs to be rebuilt from the ground up. There have been terrible abuses and they have gone unpunished. A little classic old school investigating skills would be in order.
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