Legislation Curtailing NSA Domestic Spying to Be Introduced Tuesday
Breitbart News has learned that Rep. James Sensenbrenner (R-WI) will introduce major legislation to rein in NSA surveillance activities of American citizens on Tuesday.
The United and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act, or USA FREEDOM Act, is somewhat of a step beyond the controversial “Amash Amendment” that narrowly failed to pass the House in July that would have stripped funding for NSA programs collecting the telephone records of those in the United States.
Sensenbrenner is the former Chairman of the House Judiciary Committee and current Chairman of the subcommittee on Terrorism and Homeland Security. He was also the original sponsor of the PATRIOT Act. The Wisconsin lawmaker has previously stated that the PATRIOT Act was “deliberately drafted to prevent [the] data mining" yet the NSA interpreted his legislation to justify their dragnet style surveillance of American citizens. His support, as the drafter of the PATRIOT Act, could be influential with a few of his national security oriented Republican colleagues.
There is expected to be companion legislation in the Senate. Sources indicate that Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, may be introducing that version.
Sources familiar with the bill indicate that this legislation already has more than 50 co-sponsors. They note that the Amash Amendment failed to pass by only 12 votes and that they need only 7 members to flip to successfully pass the USA Freedom Act. Sources confirm that those 50+ co-sponsors include multiple members who had voted against the Amash amendment, meaning they are already well on their way to getting the additional 7 votes they need to pass.
Several Members have told the media that if they knew now what they knew then, specifically NSA audit documents that seemed to contradict what they were being told, then they would have voted for the Amash Amendment. It’s worth noting that 13 members who voted to stop the PATRIOT Act two years ago voted against the Amash Amendment back in July.
In a letter being circulated to Members, the legislation is characterized as a mechanism “to rein in the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC.”
A draft version of the bill reveals the key provisions including 1) addressing Section 215 and ending “bulk collection of American’s communication records,” 2) “Reform[ing] the Foreign Intelligence Surveillance Court,” 3) “Increas[ing] transparency,” and 4) addresses “National Security Letters.”
Section 215 Bulk Collection:
Section 215 is the program that the Amash Amendment tried to defund. The USA Freedom Act will end “bulk collection” under Section 215 of the PATRIOT Act. Additionally, “the bill would also strengthen the prohibition on ‘reverse targeting' of Americans—that is, targeting a foreigner with the goal of obtaining communications involving an American.”
According to the letter being circulated, “The bill requires the government to more aggressively filter and discard information about Americans accidentally collected through PRISM and related programs.”
Reforming the FISA Court:
On the topic of the FISA court, the USA Freedom Act would create an Office of the Special Advocate (OSA) to be tasked with promoting privacy interest before the FISA court’s closed proceedings. Importantly, the OSA will have the authority to appeal decisions of the FISA court. The bill also creates new and more robust reporting requires to ensure that Congress is “aware of actions by the FISC and intelligence community.”
Moreover, the legislation would grant the Privacy and Civil Liberties Oversight Board “subpoena authority to investigate issues related to privacy and national security.”
The USA Freedom Act requires the Attorney General to publicly disclose all FISC decisions issued after July 10, 2003, that contains a “significant construction or interpretation of law.” This is important given that the NSA has had its own classified interpretations of the PATRIOT Act and FISA legislation. If the public is unable to see how the intelligence community interprets the law, it’s difficult for them and Congress to provide any oversight on their actions.
One provision that technology companies in particular may be pleased with is that the legislation will allow “Internet and telecom companies” to publicly report an estimate of 1) the “number of FISA orders and national security letters received” and 2) the number of “such orders and letters complied with” and 3) the number of “users or accounts on whom information was demanded under the orders and letters”
The legislation will also require the government to make annual or semiannual public reports to estimate the total number of individuals and U.S persons that were “subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.”
National Security Letters:
The USA Freedom Act adopts a single standard for Section 215 and national security letter protection to “ensure that the Administration doesn’t use different authorities to support bulk collection.” Specifically, it adds a sunset date to national security letters requiring that “Congress reauthorize the government’s authority thereby ensuring proper congressional review.”
The USA Freedom Act is to be introduced on Tuesday, just a few days after a major rally marking the 12th anniversary of the PATRIOT Act, in front of Union Station by the large bipartisan coalition StopWatching.US that includes Congressman Amash. The coalition includes hundreds of organizations from all sides of the political spectrum, and their petition on reining in NSA surveillance has received more than 575,000 signatures (Disclosure: I am part of the Stopwatching.us coalition).
DEREK KHANNA (@DerekKhanna) is a Yale Law Visiting Fellow at the Information Society Project who previously served as a congressional staffer for the House Republican Study Committee and Senator Scott Brown (R-MA).