On March 15, Congress will face again the expiration of three long-controversial post-9/11 surveillance powers: The “roving wiretaps” provision (Section 206) the “business records” provision (Section 215), and the “lone wolf” amendment (FISA Section 101(b)(1)(C)). They were originally due to expire December 15, 2019, but what with the need to avoid a government shutdown and lawmakers wanting to get home for the holidays, Congress kicked that can three months down the road. FBI Director Christopher Wray, in testimony before the House Judiciary Committee this week, called these powers “vital,” and said that “it would be a sad day for America” if they were to expire.
It won’t surprise anybody that we think he’s wrong.
First of all, allegedly, the “lone wolf” amendment’s powers have never been used, which, if true, makes it So Weird that Director Wray nonetheless sees them as “vital.”
But anyway, let’s sketch out a little of what happened last time these powers were due to expire, back in the distant Stone Age era of 2015.
Back then, Senate Majority Leader McConnell had hoped to renew the powers without any reforms, despite the massive surveillance abuses then recently revealed by Edward Snowden. Sen. Rand Paul and others mounted a filibuster to thwart McConnell, and these powers did expire – for two days. A panicked McConnell dropped his prior opposition to the mild transparency reforms of the “USA FREEDOM Act,” which then passed. Somehow, in the five years since then, the US has survived without being annihilated by any external threat, and the public now has more information about the nature of the NSA’s and the FBI’s mass surveillance abuses than we did before.
What does this new information show? FBI and NSA are not complying with the Constitution. Not even close. It’s not isolated cases; it’s so gross, and so endemic, that NSA is having to suspend and purge whole programs because they can’t run them in a Constitutional fashion. After the Snowden revelations started coming out in the summer of 2013, they’ve had more than six years to get their house in order, and under current law, that’s not happening.
Witness, for example, the FBI oversight hearing at the House Judiciary Committee this week. It could have been a chance to talk about actual FBI abuses, such as, oh, I don’t know, the FBI running over 3 million backdoor searches on US persons as an end-run around the Fourth Amendment; or their sustained surveillance and disruption of domestic advocacy groups, including Black and Muslim groups and perhaps even Restore The Fourth itself. Instead, Democrats on the Judiciary Committee seemed chiefly interested in whether the FBI’s boots were pressing equally hard on white supremacists versus Islamic terrorists, and if the FBI was doing enough to thwart Russian intervention in elections. On the Republican side, there was more focus on actual abuses by the FBI, but nearly all of them focused on the (legitimate) concerns raised by the deficiencies in the FISA application to surveil Trump campaign worker Carter Page, rather than on broader issues of FBI surveillance.
That’s why it’s a good sign that a new bill has launched, the “Safeguarding Americans’ Private Records Act” (H.R.5675 / S. 3242), with substantial bipartisan support. In the House, the Republican cosponsors are Reps. Davidson, Gaetz, Massie and Yoho; the Democrats are Blumenauer, DeFazio, Jayapal, Lofgren and McCollum. In the Senate, it has cosponsorship from Wyden and Daines. Many of these legislators have been leaders in reining in the surveillance state, and the bill reflects that.
SAPRA is, at its core, a deep reform – some might say, neutering – of the infamous Section 215 of the PATRIOT Act, with additional limitations on searches of Section 702 data, and transparency reforms of the Foreign Intelligence Surveillance Court. Here are some of the things it does:
- SAPRA imposes a statutory end to the Call Detail Records program, which scooped up all Americans’ phone metadata. That program was limited by the USA FREEDOM Act, and NSA found that it was unable to operate the program lawfully under those new limits, so NSA declared in 2019 that it was no longer using it. However, NSA spokespeople have given testimony to Congress that they don’t want a statutory end to it, and the Trump administration opposes such an end, because perhaps one day terrorists will in fact be caught using it. Well, they’ve had nearly twenty years to have that happen; it’s safe to say at this point that it’s both massively intrusive, and wholly unhelpful in preventing terrorist attacks.
- In line with Supreme Court precedents, SAPRA “explicitly prohibits the warrantless collection of cell site location and GPS information as well as browsing history and internet search history, and ensures that the government cannot conduct collection for intelligence purposes that would violate the Fourth Amendment in the criminal context.” This is vital. The FBI was found in late 2019 to have been running over three million searches a year of intelligence databases, likely mostly on US persons, in order to make an end run around the need for a warrant to collect the communications of US persons in a criminal context. This “FBI backdoor search” abuse must end.
- Under SAPRA, the government would have to disclose its use of Section 215 data in criminal cases; justify to the FISC the use of gag orders on companies who receive Section 215 orders; and limit its use to counterterrorism and espionage cases.
- Addressing some of the problems identified in the Inspector-General’s report into defects in the Carter Page FISA application, the bill finally gives FISC amici an independent and potentially adversarial role on the Court, to represent the interests of the people and organizations being surveilled.
- SAPRA also makes sure that all “significant” FISC opinions are made public within six months, and strengthens the Privacy and Civil Liberties Oversight Board. It would finally reveal the numbers FBI and NSA have been so close-mouthed about: How many Americans have had their information collected under Section 215, how many US person searches have been conducted under Sections 215 and 702, and how many of those searches actually returned information.
- The FBI loves to surveil domestic groups who advocate changes to the economic, social, or racial status quo, and particularly dislike their own critics. SAPRA takes action on this, requiring the Inspector General to conduct an investigation into the use of First Amendment-protected activities as well as race, ethnicity, national origin and religious affiliation to support Section 215 applications.
It does plenty more than that; a full summary is here. But politically, we should also ask what chance SAPRA has. Its biggest limitation is that it is not cosponsored by leadership. The lead committee on the PATRIOT Act renewal fight is likely to be House Judiciary, because the Intelligence Committees have been busy with other things. The House Judiciary Chair is Rep. Jerry Nadler (D-NY), who has supported significant reforms in the past. The record of the Ranking Member, Rep. Doug Collins, has been mixed: He supported significant surveillance reforms when President Obama was in office, but has opposed them under Trump. Collins is stepping down from that position, and is likely to be replaced by Rep. Jim Jordan (R-OH), who has a very strong record on surveillance reform; but that transition is unlikely to take place until after the mid-March deadline for the expiration of the PATRIOT Act powers.
If we reach mid-March with there being only two options on the table – SAPRA or expiration of the PATRIOT Act powers – then there is a chance that the House Judiciary Committee would pass it. But it’s more likely that a more limited bill will emerge either from Nadler’s office or from the Senate Intelligence Committees. Getting more cosponsors for SAPRA now will likely be the best way to influence that more limited bill.
Your Member of Congress needs to know that we will not stand for another five years of mass spying on Americans. Ask them to cosponsor SAPRA today!