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Privacy Tracker | FISA Accountability and Privacy Protection Act of 2013 Proposed Related reading: Canada, US begin new phase of cross-border data sharing

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Yesterday, Sen. Patrick Leahy (D-VT), with the co-sponsorship of Sens. Lee (R-UT), Udall (D-CO), Wyden (D-OR), Blumenthal (D-NY) and Tester (D-MT), proposed the FISA Accountability and Privacy Protection Act of 2013 to “strengthen privacy protections, accountability and oversight related to domestic surveillance conducted pursuant to the USA PATRIOT Act and the Foreign Intelligence Surveillance Act of 1978.”

IDG News Service reports on the proposed reforms including:

  • Narrowing the scope of Section 215 of the USA PATRIOT Act orders by requiring the government to show both relevance to an authorized investigation and a link to a foreign group or power;
  • Letting people challenge nondisclosure or "gag orders" in court;
  • Expanding public reporting on the use of national security letters;
  • Advancing the sunset date for the FISA Amendments Act from June 2017 to June 2015, aligning it with the USA PATRIOT Act sunset, and
  • Increasing oversight by requiring the inspector general of the intelligence community to conduct a comprehensive review of the FISA Amendments Act and its impact on the privacy rights of Americans.

This bill seems to encompass both of the “In Government” bills Tracker reported on June 24, and then some. So, perhaps we will see the Restore Our Privacy Act and Nexus to Terrorism Act fall by the wayside in light of this new proposal.

IAPP extern Rory McNamara, currently studying at the University of Maine School of Law, compiled the following analysis:

FISA Accountability and Privacy Protection Act of 2013

1)      Earlier sunsets for 50 USC 1861 than previously accorded

2)      Essentially adopts the 50 USC 1861 rewording of Nexus to Terrorism

  1. Strikes “Certain business records” in favor of “tangible things”
  2. Wants a factual basis for this surveillance
  3. Specifically allows for judicial review of nondisclosure orders from FISA courts

3)      Changes 50 USC 1842(c) to require a showing of specific facts rather than simply a certification of need by the investigating agency in order to get pen registry access

  1. Desires minimization procedures; “to minimize the retention, and prohibit the dissemination…” and so that when/if disseminated, won’t identify a person

4)      18 USC 2709: reworks nondisclosure of National Security Letters to allow for more exceptions and greater requirements to show need for nondisclosure

  1. Also requires showing of “reasonable grounds” for access to telecom records

5)      More reporting of FISA court orders to Congress

  1. Including annual publication of a declassified report summarizing how the stuff is used and what impact it was on citizens’ privacy

6)      Greater auditing and reporting requirements

7)      18 USC 3103(b)(3) reduces delayed notice search warrants from 30 to 7 days


Restore Our Privacy

1)      50 USC 1861 rewording to better focus type of tangible things and the reasons for collection

2)      50 USC 1862 (FISA reporting)


Nexus to Terrorism

1)      50 USC 1861 reworking to require specific evidence for investigation

  1. Strikes “certain business records” in favor of “tangible things”
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