OTI Welcomes Introduction of USA FREEDOM Reauthorization Act Bill

Today, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) introduced the USA FREEDOM Reauthorization Act of 2020. New America’s Open Technology Institute (OTI) welcomes the bill, which would provide several much-needed reforms to U.S. surveillance laws. Three provisions of U.S. surveillance law will expire on March 15 unless Congress acts to reauthorize them. Congress must use this opportunity to enact meaningful surveillance reform, and avoid any efforts to further extend the sunset dates without including reforms.

The three authorities 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. Section 215 also includes authorization for the government to collect Americans’ phone records, known as call detail records (CDRs), on an ongoing basis. This CDR program replaced the broader bulk phone records program that Edward Snowden revealed to the public in 2013, but it still threatens privacy without aiding counterterrorism efforts.

Although the bill does not include every reform that OTI seeks, the USA FREEDOM Reauthorization Act includes several meaningful reforms that would strengthen safeguards for privacy and civil liberties and improve oversight over surveillance programs. Critical reforms in the bill include:

• Revoking the authority for the Section 215 CDR program, which is privacy-invasive and ineffective and has permitted the government to collect hundreds of millions of phone records on an ongoing basis. Ending this CDR program is a “necessary first step” for any meaningful surveillance reform effort.
• 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 the government to obtain a warrant in order to access highly sensitive location information, applies to intelligence investigations as well.
• Expanding and strengthening the role of the “amicus” participants in the secret Foreign Intelligence Surveillance Court to present arguments regarding privacy and civil liberties and contest arguments made by the government. Importantly, this would include (1) expanding the cases in which these friends of the court participate, to include matters involving the exercise of First Amendment rights; (2) authorizing amici to seek appellate review of decisions in the Foreign Intelligence Court of Review and in the Supreme Court; and (3) ensuring that amici can access all information relevant to matters in which they are participating.

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 less than three weeks before the March 15 sunset dates, Congress must stand firm against another clean reauthorization of the expiring surveillance laws and instead use this opportunity to enact meaningful surveillance reform. The USA FREEDOM Authorization Act includes critical reforms such as finally ending the invasive and ineffective Section 215 CDR program, and reforming FISA Court operations by expanding and strengthening the role of advocates who can contest arguments made by government attorneys. We welcome the introduction of this bill.”