OTI Calls on Congress to Use Extension on USA FREEDOM Reauthorization Act to Add Civil Liberties Safeguards

Last week, the House passed H.R. 6172, the USA FREEDOM Reauthorization Act of 2020 by a vote of 278 to 136, and sent the bill over to the Senate, which had little opportunity for debate. Today, after Senators raised concerns that the bill fails to include sufficient civil liberties safeguards, Senate Leadership announced an agreement on a 77-day extension for the three expiring provisions of U.S. surveillance law.

New America’s Open Technology Institute (OTI) commends Senators for standing strong in favor of civil liberties and calls on Congress to use this extension period to strengthen the reforms contained in the USA FREEDOM Reauthorization Act bill. The bill, as passed by the House, would extend the expiring surveillance law provisions until December 2023 as part of a larger package that includes some key surveillance reforms. The three authorities that are set to expire are the roving wiretap provision, the lone wolf provision, and Section 215. Section 215 authorizes the government to collect business records, such as financial or hotel records, as part of foreign intelligence investigations.

The version of the bill passed by the House fails to include additional important reforms that OTI has sought. It is highly unfortunate that negotiations among House members to strengthen civil liberties safeguards in the bill broke down, and that the bill was pushed through to passage in the House without any opportunity for a public amendment process. Congress should use this extension period to transform the bill into a robust measure for surveillance reform, without retreating on any of the reform measures already included in the version passed by the House.

Congress should strengthen the bill by adding further reforms including:

• Prohibiting surveillance on the basis of First Amendment activity by strengthening the current provision, which only bans surveillance conducted “solely” on the basis of First Amendment protected activity.
• Further expanding and strengthening the role of the “amicus” participants in the secret FISA Court to present arguments regarding privacy and civil liberties and contest arguments made by the government.
• Establishing meaningful limits on retention of data collected under Section 215 that are not subject to broad exceptions.
• Strengthening the requirement for notice to criminal defendants who have been subject to 215 surveillance, at a minimum by removing the national security exception contained in the bill passed by the House.

The USA FREEDOM Reauthorization Act already contains several key reforms that should be maintained, including:

• Revoking the authority for the Section 215 CDR program, which is privacy-invasive and ineffective. This CDR program replaced the broader bulk phone records program that Edward Snowden revealed in 2013, but still threatens privacy without aiding counterterrorism efforts. Ending this CDR program is a critically needed reform.
• Clarifying that the government may not rely on Section 215 to collect any type of information that would require a search warrant in the context of criminal investigations. This provision would codify that the Supreme Court’s decision in Carpenter v. United States, which requires a warrant in order to access highly-sensitive location information, applies to intelligence investigations as well.
• Strengthening the role of the amici who participate in the FISA court by expanding the cases in which they participate and their ability to access information, and by authorizing them to seek appellate review of FISA court decisions.

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:

“With this latest extension, Congress still has the opportunity to use its time wisely and achieve robust reform to U.S. surveillance law. It is irresponsible for Congress to keep waiting until the last minute, and repeatedly reauthorizing these overbroad surveillance laws without any meaningful reforms.

“The reforms in the current House-passed bill are welcome, but alone insufficient. It is appalling that there has been so little public debate over meaningful reforms despite widespread awareness of these laws’ civil liberties failings, and Congress shouldn’t wait several more years until the next sunset date.”