Recently, President Obama signed the USA FREEDOM Act into law. Hailed, the “biggest intelligence reform in 40 years,”the FREEDOM Act is considered the first major pro-privacy change to U.S. intelligence law since the original enactment of the Foreign Intelligence Surveillance Act in 1978. Notably, the FREEDOM Act requires the government to obtain a targeted warrant to collect phone metadata from telecommunications companies, increases the transparency of the Foreign Intelligence Surveillance Court (FISA Court), which reviews those warrant requests, and reauthorizes the Patriot Act’s “lone wolf” and “roving wiretap” provisions that lapsed on June 1. In order to understand the FREEDOM Act’s reform measures, it is helpful to see how the new law amends the Foreign Intelligence Surveillance Act of 1978 (FISA). Therefore, in addition to an analysis of the FREEDOM Act’s most significant changes, the Westin Center provides an easy to read redlined version of the FISA, showing how the FREEDOM Act modifies existing law.
Prohibition on Bulk Collection
The biggest change instituted by the FREEDOM Act puts an end to the National Security Agency's (NSA) bulk collection of U.S. call metadata. This practice, interpreted by the NSA and FISA Court to be authorized by Section 215 of the Patriot Act, constituted the first and most controversial of the programs exposed by Edward Snowden. In lieu of bulk collection, and subject to a transition period of 180 days, the FREEDOM Act requires phone companies to provide records to the government on a targeted case by case basis upon obtaining judicial approval from the FISA Court.
Specifically, Title I of the FREEDOM Act prohibits the Federal Bureau of Investigation (FBI) from applying for an order to produce “tangible things” without providing a specific selection term. The FREEDOM Act defines “specific selection term” as “a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.” Under Title I, FISA Court orders approving the production of tangible things must include “each specific selection term used as the basis for such production.” FISA Courts can no longer authorize the collection of tangible things by the government without the use of a specific selection term.
Also under Title I, government applications for the ongoing production of call detail records must show: 1) “reasonable grounds to believe that the call detail records… are relevant to such investigation;” and 2) “a reasonable, articulable suspicion that [the] specific selection term is associated with a foreign power… or an agent of a foreign power engaged in international terrorism or activities in preparation [of such acts].” As a safeguard against overbroad collection, orders for the ongoing release of call detail records are limited to a period no longer than 180 days – although this period can be extended upon application. Title I further directs the government to “adopt minimization procedures that require the prompt destruction of all call detail records produced under the order that the government determines are not foreign intelligence,” and “destroy all call detail records produced under the order as prescribed by such procedures.”
The drafters of the FREEDOM Act further curtailed bulk collection orders beyond call data. Title II of the FREEDOM Act requires government applications for orders approving pen registers and trap and trace devices to include a “specific selection term,” adopting the same definition of “specific selection term” as Title I. Moreover, Title V reforms the National Security Letter powers by amending the federal criminal code, the Right to Financial Privacy Act of 1978 and the Fair Credit Reporting Act to require the FBI and other government agencies to use a specific selection term as the basis for issuance of national security letters, requesting information from wire or electronic communication service providers, financial institutions or consumer reporting agencies.
With respect to ongoing investigations, the Patriot Act carried a “grandfather clause,” stating that, even if Section 215 expired, existing investigations of metadata would be allowed to continue. The Obama administration has neither declared what it would do with existing metadata nor whether existing data will continue to be searchable.
FISA Court Reform
Title IV of the FREEDOM Act focuses on FISA Court Reform. Specifically, Title IV directs the presiding judges of the FISA Court to jointly designate at least five individuals to be eligible to serve as amicus curiae, that is,experts who are not a party to the litigation that are invited by the court to give advice on a matter pending before it. Once chosen, amicus curiae will assist the court “in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate.”
Title IV also offers more public access to opinions of the judges of the FISA Court. Under Title IV, the Director of National Intelligence (DNI), in consultation with the Attorney General, is required to review for declassification FISA Court opinions that “include significant construction or interpretation of any provision of law.” Consistent with this mandate, Title IV directs the DNI to make decisions, orders and opinions of the FISA Court publicly available “to the greatest extent practicable.”
Transparency and Reporting Requirements
The FREEDOM Act also requires heightened transparency measures associated with government data collection and searches, and allows companies to be more forthcoming regarding the number of times they were asked for access to data by government. In particular, Title VI requires the government to annually disclose to Congress various details regarding the number of orders and certifications sought and received; estimates of the number of people targeted and affected by surveillance; and the number of appointments of amici curiae. Title VI also allows companies who are subject to nondisclosure requirements accompanying government production orders to report publicly, on a semiannual or annual basis, limited information about the number and types of production orders they received.
Roving Wiretap and Lone Wolf Provisions Reinstated
Another provision of the FREEDOM ACT receiving significant attention is Title VII, which renews two expired Patriot Act provisions– commonly referred to as the “lone wolf” and “roving wiretap” provisions. The "lone wolf" provision allows the government to surveil a non-U.S. person, even if that individual has no established connection to a foreign power or terrorist group. The "roving wiretap" provision lets the government monitor an individual across a host of different communications devices, such as different cell phones, without having to specify to a court the devices that will be monitored. Title VII of the FREEDOM Act extends the roving wiretap and lone wolf provisions until December 15, 2019.
Title VII also creates an emergency exception that allows the government to target a non-U.S. person, previously believed to be located outside of the U.S., for up to 72 hours once the individual is “reasonably believed” to be located inside the U.S. Before targeting the non-U.S. person, however, the government must show that a “lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm.”
In addition, Title VII expands the definition of “agent of foreign power” to include a non-U.S. person who: 1) acted in the United States for a foreign power engaged in intelligence activities, irrespective of whether that person is now inside the U.S.; or 2) knowingly aids, abets, or conspires with any person engaging in an international proliferation of weapons of mass destruction on behalf of a foreign power or conducts activities in preparation for such proliferation.
Other Provisions
Title III of the FREEDOM Act places limits on how the government can use “unlawfully obtained information.” In particular, Title III prohibits the use – in trials, investigations, or regulatory proceedings – of information obtained through procedures deemed by a FISA Court to be “deficient,” unless the government “corrects any deficiency” and a FISA Court allows the use of the information under minimization procedures.
Conclusion
In its December 2013 report, Liberty and Security in a Changing World, President Obama’s Review Group on Intelligence and Communications Technology stated: “Our review suggests that the information contributed to terrorist investigations by the use of Section 215 telephony metadata was not essential to preventing attacks….” Addressing these concerns over the appropriate balance between national security and civil liberties, the USA FREEDOM Act redesigns the surveillance regime put in place by the FISA and expanded by the USA PATRIOT Act, abolishing government powers for bulk collection of communication metadata. Civil society’s response to the dramatic reform was positive. While calling for additional scaling back of surveillance programs, Nuala O’Connor, President of the Center for Democracy & Technology (CDT), stated the FREEDOM Act offers “an effective path forward in reforming overbroad domestic surveillance and putting an end to the bulk collection of Americans’ communications.” Jameel Jaffer, deputy legal director for the American Civil Liberties Union (ACLU), called the new law “a milestone,” and “the most important surveillance reform bill since 1978.” Peter Swire, himself a member of Review Group, called the reform part of the “second wave of global privacy protection.”