Will McConnell's Amendments Gut Surveillance Reform?

The Senate majority leader tries to kill FISA Court transparency.


Taking aim at transparency.
Credit: Gage Skidmore / photo on flickr

This morning the USA Freedom Act, the law replacing bulk metadata surveillance authorities from the parts of The PATRIOT Act that just expired, survived the debate and senators voted to push it forward to the next phase, discussing amendments.

Senate Majority Leader Mitch McConnell (R-Ky.) has introduced several amendments to weaken what the Freedom Act does (I should note here that the USA Freedom Act has been weakened already from previous versions). They give the government a full year to implement the restrictions on searches and greater oversight provided by the Freedom Act instead of six months. They also require telecom and Internet companies to inform the attorney general if they plan to change their data retention policies and wait 180 days, giving Congress perhaps an opportunity to meddle.

There are two other amendments that alter and weaken a couple of Foreign Intelligence Surveillance (FISA) Court transparency issues that are vital to surveillance reform, but are technical and complicated. Mike Godwin at free-market, limited government think tank R Street has a pretty good explainer about what they change in the Freedom Act and why they're bad:

Amendment No. 1451, replace amicus provision with weakened version: This amendment would water down significantly the amicus curiae provision by removing the transparency requirement that the FISA Court provide written notice about when and why it chooses not to appoint an amicus. Additionally this amendment would limit the amicus' access to relevant information and responsibilities before the court.

Current USA FREEDOM Act: The FISA Court must appoint an amicus curiae (a "friend of the court"—a kind of independent special advocate) to serve in any case that "presents a novel or significant interpretation of the law," or issue a written finding that an appointment is not appropriate. The amicus would provide the court with legal arguments that advance the protections of privacy and civil liberties, information relating to intelligence collection or technology and any other relevant legal arguments. The amicus also would have access to all legal or other materials the court deems relevant to his or her duties.

Why oppose this amendment? The amicus provision in the House-passed bill is already crafted to give the FISA Court enormous discretion in deciding when and how to call upon an amicus. There is no evidence from the intelligence community, or anyone else, that the House-passed provision would harm national security or interfere with the FISA Court's ability to fulfill its function. …

Substitute Amendment No. 1452, complete substitute with a removal of declassification of FISA Court opinion requirement: This substitute amendment would contain all the above amendments and remove the requirement to declassify significant FISA court opinions:

Current USA FREEDOM Act: The bill currently requires the director of national intelligence to review all significant FISA Court decisions and either declassify and publicly release the opinions or release summaries of the opinions that would be sufficient to inform Americans and Congress of their general context, the legal issues in question and how the court ruled.

If this amendment passed, the DNI no longer would be required to conduct a declassification review of FISA Court decisions or release any new information about them.

Why oppose this amendment? This accountability provision is one of the most essential aspects of the USA FREEDOM Act. Releasing significant FISA Court decisions is essential to ensure the government and the FISA Court are interpreting the surveillance authorities as Congress intended. It also is key to combat increasing government reliance on secret law, which has been used to justify massive spying programs that Congress did not intend.

These FISA court transparency requirements in the Freedom Act are one of the main reasons why some privacy advocates support the legislation even though it doesn't truly end all mass data collection targeting Americans. Recall that one of the chronic problems with our federal surveillance is the reputation of the FISA Court for rubber-stamping whatever the National Security Agency (NSA) or FBI brings to them. The FISA Court was apparently fine with allowing the NSA to collect the telephone metadata from untold millions of Americans, something the Second Circuit court just recently declared was never actually authorized by the PATRIOT Act.

So, these new FISA Court transparency rules are intended to keep the public better informed of whatever decisions the court is making. If the FISA Court continues to rubber stamp surveillance requests and doesn't properly oversee the new search restrictions under the Freedom Act, the hope is that we won't have to wait for another Edward Snowden to find out.

Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have introduced amendments of their own this morning. Obviously they want to take it in the opposite direction of McConnell and further secure Fourth Amendment-based restrictions on data the government is permitted to collect about Americans. Dave Weigel has some basic details here at Bloomberg. It's not clear to me at the moment whether Paul and Wyden's amendments will even be considered. Right now in the Senate, they're debating McConnell's amendments.

If any of these amendments are approved, and the Freedom Act subsequently passes the Senate, it will have to go back to the House. Keep in mind that most of those who voted against the Freedom Act in the House did so because they didn't think it was strong enough. McConnell's amendments will likely cause it to lose votes in the House, not gain votes. The question is whether it would lose enough votes to doom the bill again.