By Elizabeth Holland, AALL Public Policy Associate
Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Congressman Jim Sensenbrenner (R-Wisc.), chairman of the House Judiciary Crime and Terrorism Subcommittee, introduced legislation that seeks to significantly limit the collection and use of Americans’ information under our nation’s domestic surveillance authorities. The Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act, or “USA FREEDOM Act”, would amend the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities. AALL has joined more than 20 diverse organizations in endorsing this legislation.
The USA FREEDOM Act reins in the collection of Americans’ records by raising the standard for collection of items pursuant to Section 215 of the Patriot Act. The bill requires that the tangible things sought are relevant and material to an authorized investigation into international terrorism or clandestine intelligence activities, and pertain to: (1) a foreign power or agent of a foreign power; (2) the activities of a suspected agent of a foreign power who is the subject of an investigation; or (3) an individual in contact with, or known to, a suspected agent of a foreign power. This reform would extend not only to phone records, but also to financial records, location data, medical records, credit card data, and other information the government may attempt to gather in bulk for intelligence purposes. Further, this legislation would raise the standard for collection under National Security Letter statutes and the Pen Register/Trap and Trace to prevent the government from shifting bulk collection to another authority.
The USA FREEDOM Act also seeks to protect Americans’ communication collected under the FISA Amendments Act of 2008. The bill closes the National Security Agency’s “back door” access to Americans’ communications by requiring a court order to search for the communications of Americans in data collected without individualized warrants under Section 702 of FISA. The bill also imposes other safeguards on activities conducted under Section 702, including strengthening the prohibition on “reverse targeting” of Americans (targeting a foreigner with the goal of obtaining communications involving an American). Under the bill, the scheduled expiration of the FISA Amendments Act is moved from 2017 to 2015 to align it with the next Patriot Act reauthorization.
Additionally, the USA FREEDOM Act also contains important provisions to improve oversight, transparency, and accountability with respect to the NSA’s surveillance programs. If passed, the legislation will create the Office of the Special Advocate, appointed by the Privacy and Civil Liberties Oversight Board (PCLOB), which would promote privacy interests before the Foreign Intelligence Surveillance Court (FISC). The bill requires the Attorney General to disclose, or write summaries for, all significant FISC decisions written since 2003. The bill addresses the problem of “secret law” by establishing a process for public release of FISC opinions containing significant legal interpretations. The bill also would require the government to provide new public reporting on FISA implementation. Specifically, the government would be required to make public reports estimating the total number of individuals and U.S. persons who were subject to various types of FISA orders and whose information was reviewed by federal agents. The bill enhances oversight by requiring Inspector General audits on the use of Section 215 orders, National Security Letters, and other surveillance authorities under the Patriot Act, as well as a comprehensive review of Section 702 surveillance by the Inspector General of the Intelligence Community.
AALL believes that the government has a responsibility to protect the privacy of library users and we oppose any current or future legislation, regulation, or guideline that erodes the privacy and confidentiality of library users or that has the effect of suppressing the free and open exchange of ideas and information. AALL believes that there must be effective oversight of current law that expands surveillance on library users. We urge Congress enact the USA FREEDOM Act to provide effective oversight of expanding surveillance on library users and amend provisions of the Patriot Act and other legislation, regulations, and guidelines that threaten the rights of inquiry and free expression.
The USA FREEDOM Act has more than 70 cosponsors in the House and Senate and enjoys broad bipartisan support. Visit our Legislative Action Center to urge your members of Congress to support this important reform.