OTI Applauds Senate’s Strengthening of Civil Liberties in USA FREEDOM Reauthorization Act, Calls on House to Follow

Yesterday, the Senate passed the Lee/Leahy amendment to H.R. 6172, the USA FREEDOM Reauthorization Act of 2020 by a vote of 77 to 19, and today the Senate passed the bill, as amended, by a vote of 80 to 16. New America’s Open Technology Institute (OTI) applauds the Senate for its passage of the Lee/Leahy amendment, which greatly enhances the privacy and civil liberties safeguards in this legislation.

On March 16, 2020, three surveillance authorities⁠—the roving wiretap provision, the lone wolf provision, and Section 215⁠—expired. The USA FREEDOM Reauthorization Act, which passed the House on March 11, would reauthorize these three expired surveillance law provisions until December 2023 as part of a larger package that includes some reforms.

The Lee/Leahy amendment provides critical protections by further strengthening and expanding the role of the “amici curiae,” who are independent, expert advisors with privacy and civil liberties expertise to the Foreign Intelligence Surveillance Court (FISC). The base bill includes some improvements to this critical role, but the Lee/Leahy amendment provides far stronger protections. The amendment expands the cases in which amici participate and increases their access to information. It would authorize their appointment for sensitive investigative matters (including those involving political or religious organizations and journalists), in matters involving new programs or technology, and in renewals of programmatic surveillance like Section 702. Additionally, the amendment would require the DOJ and FBI to provide all material evidence, including exculpatory evidence, to the Court.

The bill passed by the House included some key surveillance reforms, such as ending the privacy-invasive Section 215 Call Detail Records program, and authorizing the amici to seek appellate review of FISA court decisions. Now that the Senate has passed the bill with the Lee/Leahy amendment, the House should follow suit by adding these critical reforms to the legislation. The House should also take up the Daines/Wyden amendment, which would prevent the government from using Section 215 to obtain internet search and browsing history, and which fell short by only one vote in the Senate.

The following quote can be attributed to Sharon Bradford Franklin, policy director at New America’s Open Technology Institute, and former executive director of the Privacy and Civil Liberties Oversight Board:

“The ‘amici’ who contest the government’s arguments and advise FISA court judges on privacy and civil liberties can provide much-needed oversight for the FISA process. Amici should be involved in far more cases than what is authorized under current law, and expanding their role is even more urgent now that recent reports from the Department of Justice Inspector General have revealed the major failures in how the Justice Department and FBI have brought matters before the FISA court. We commend the Senate for passing the Lee/Leahy amendment to strengthen and expand the important role that the amici play. The House should follow the Senate’s lead, and pass this amendment as well.”