Surveillance reform is an elusive goal. Since March, Congress has been considering the USA FREEDOM Reauthorization Act of 2020, which would renew three surveillance authorities and include a number of measures designed to increase safeguards for privacy and civil liberties. What number of measures, and how robust the reforms, have been the subject of intense debate, and the three provisions actually expired on March 15. As of Memorial Day weekend, it appeared that Congress was on track to enact a meaningful reform bill that would reauthorize the surveillance authorities as part of a package that had the support of privacy advocates. But just one week later, the seeming agreement had fallen apart.
The House and Senate have passed two competing versions of the bill that will now likely move to conference. As a result, one of the most important and potentially impactful reforms contained in the Senate version of the legislation is now in grave peril. But it is critical that conferees work to preserve the set of provisions contained in the Lee/Leahy amendment, which would expand and strengthen the role played by “amici” or “friends of the court” in the secret Foreign Intelligence Surveillance Court, or FISA Court, and the Foreign Intelligence Surveillance Court of Review.
On March 11, the House passed H.R. 6172, the USA FREEDOM Reauthorization Act, which would extend the three now-expired surveillance provisions until December 2023, and includes some key civil liberties reforms. On May 14, the Senate passed the same bill with the addition of the Lee/Leahy amendment—the only difference between the two bills. (Frustratingly, the Daines/Wyden amendment, which would have clarified that the government needs a probable cause showing in order to collect internet browsing and search history, fell short in the Senate by only one vote, and then was abandoned in the House.) Thereafter, House leadership canceled the vote on the bill as passed by the Senate, and the House voted instead to conference with the Senate on the two bills.
The legislation as passed by the Senate falls short of the goals of privacy advocates and fails to include the provision protecting web browsing and internet search history, but it does include several meaningful reforms that would help rein in overbroad surveillance and improve oversight. As an initial matter, both the House and Senate versions of the legislation would finally end bulk collection of Americans’ phone records by eliminating the authority for the Section 215 Call Detail Records program. This CDR program had replaced the earlier bulk phone records program revealed to the public by Edward Snowden in 2013 but still allowed the government to collect vast troves of Americans’ phone records. Ending this ineffective but privacy-invasive program is critical but a bare minimum for a reform bill.
But perhaps the most significant reforms contained in the Senate bill are a series of provisions that would substantially expand the role and authority of the “amicus curiae” (friend of the court) in advising the judges of the FISA Court and the FISCR. Although even this package could have been further improved, the new amicus role has the potential to change the inner workings of the FISA Court and the FISCR, bolstering surveillance oversight and providing much-needed accountability for the operation of these courts. But it is this very set of reforms, contained in the Lee/Leahy amendment, that is now at risk.
Congress originally created this role in an effort to reform the FISA Court and the FISCR when it enacted the USA FREEDOM Act in June 2015. That law requires that the presiding judges of the FISA Court and the FISCR appoint a panel of at least five independent experts with security clearances who possess expertise in privacy, civil liberties, intelligence collection, or communications technology. The judges must then select members of the panel to participate in cases involving “a novel or significant interpretation of the law,” and the amici are tasked with advising the judges on their areas of their expertise. But the “novel or significant interpretation” standard relates to the legal issues involved in the case, not the level of threat that proposed surveillance poses to privacy and civil liberties.
The FISA Court and the FISCR necessarily operate in secret in order to review the classified information that supports government requests to conduct foreign intelligence surveillance. From the time these courts were created in 1978 until the USA FREEDOM Act was passed, government attorneys would present their surveillance applications to the FISA Court without any other attorney participating to present an opposing view. During this time, few people had any familiarity with how the FISA Court or the FISCR operated. But the initial Snowden disclosures in June 2013 shined a spotlight on the secret courts and raised the question of whether the FISA Court was a “rubber stamp” for government surveillance requests.
The following month, the Privacy and Civil Liberties Oversight Board, where I served as executive director from September 2013 through January 2017, held a public workshop to examine the surveillance programs Snowden revealed to the public and consider how to reform the operation of the FISA Court. One of the panelists was Judge James Robertson, a federal judge who had previously served on the FISA Court, who argued that to avoid being a rubber stamp, the process needed “an adversary … to challenge and take the other side of anything that is presented to the FISA Court.” As he put it, “[J]udges are learned in the law and all that, but anybody who has been a judge will tell you that a judge needs to hear both sides of a case before deciding.” When the PCLOB issued its 2014 report on the bulk phone records program, it unanimously recommended that Congress create a special advocate role to present independent views to the FISA Court and to “make legal arguments addressing privacy, civil rights, and civil liberties interests.”
So as part of the 2015 USA FREEDOM Act, Congress created an amicus curiae role. This was an important step toward improving the operation of these secret courts. FISA Court judges have relied upon the amici’s positions, and even where the FISA Court judges have disagreed, they have analyzed and considered the amici’s arguments. However, the amici role as enacted in 2015 was significantly watered down from earlier congressional proposals, and it was weaker than the special advocate position described by the PCLOB in three critical ways. First, the PCLOB recommended that the special advocates participate in more than just matters involving “novel and significant” issues. Second, the PCLOB urged that the special advocates should have full access to information related to the matters in which they participate. Third, the board recommended that the special advocates should be able to petition for an appeal from the FISA Court to the FISCR, and from the FISCR to the Supreme Court. None of these things happened.
In the months leading up to Congress’ recent consideration of the USA FREEDOM Reauthorization Act, the public gained further insight into just how broken the FISA process remains. In December, the Department of Justice’s Office of the Inspector General released a report examining the “Crossfire Hurricane” investigation, which included the highly controversial investigation of Carter Page, who was a foreign policy adviser to the Trump 2016 campaign for about six months. The inspector general’s report described numerous deficiencies, including significant inaccuracies and omissions in the Page FISA application. Then, in March, the inspector general released a follow-up report, summarizing findings from a review of a random sample of applications from eight FBI field offices. That report found apparent errors or inadequately supported facts in all of the files reviewed.
Although the debate over the Carter Page investigation has been highly politicized, the inspector general reports clearly illustrate major failures in how the Justice Department and FBI have brought matters before the FISA Court. And without any attorneys to test the governments’ assertions and provide alternative views, it has been difficult if not impossible for the FISA Court judges to uncover these problems.
The Senate version of the USA FREEDOM Reauthorization Act would meaningfully reform the FISA Court process in several ways, most notably by strengthening the role of the amici. First, the legislation would significantly expand the types of cases in which amici are authorized to participate. Now they would also be involved with:
• cases that present “significant concerns” regarding activities protected by the First Amendment;
• “sensitive investigative matters,” which are defined to include matters involving domestic public officials or candidates for office, news media, and religious or political organizations;
• matters involving a request for approval of a new program, a new technology, or a new use of existing technology; and
• requests for reauthorization of programmatic surveillance, which would include the annual renewals of authority to conduct surveillance under Section 702 of FISA.
The limited publicly available information about the FISA Court’s operations shows that all of these new categories are important. In a 2013 FISA Court opinion (which contains significant redactions), the judge analyzed whether there were sufficient facts unrelated to First Amendment activity to support the requested surveillance. The unredacted language does not inspire confidence that First Amendment issues received due consideration; an amicus could play an important role in such cases. The new First Amendment category, as well as the new sensitive investigative matters authorization, would have covered the investigation of Carter Page. Further, both the PCLOB’s 2014 report, and congressional testimony by the current PCLOB chair, have urged that an amicus should participate in the annual renewal of Section 702 programmatic surveillance.
Second, the legislation would expand the ability of the amici to access information relevant to the matters in which they appear. Under the 2015 USA FREEDOM Act, amici were only given permission to access materials “that the court determines are relevant” to their duties. The Senate bill provides that amici “shall have access” to the full record in a given matter, from the application through motions, including relevant legal precedent and unredacted copies of prior FISA Court opinions, to the same extent that such information is available to the government. Under the original 2015 rules, amici would not necessarily have known what information they lacked.
Third, the USA FREEDOM Reauthorization Act, in both the House and Senate versions of the bill, provides a procedure for the amici to seek appellate review of decisions. These provisions would authorize amici to file a petition in the FISA Court asking the judge to certify a question for appeal to the FISCR, and permits amici to petition the FISCR to certify a question of law for review in the Supreme Court. A July opinion of the FISCR shows why this ability to petition for appeal is so important. In that appeal of an October 2018 decision by the FISA Court, the FISCR only reviewed issues on which the government attorneys had lost, and did not consider any of the issues on which the FISA Court had ruled against the amicus.
The amici provisions in the Senate version of the bill have the potential to provide sorely needed oversight for the FISA process. Because the amici can participate behind the curtain that protects classified information, they can serve as the public’s eyes and ears, pushing back against the government’s arguments, and holding the government and the secret courts accountable. Now that Congress has come so close to enacting these meaningful reform provisions, it would be extremely unfortunate if they became a casualty to the highly politicized FISA reform debate. But if the conferees fight for these provisions, as they should, we will ultimately be able to assess the new and improved amicus role. Thanks to one additional reform in both versions of the USA FREEDOM Reauthorization Act, there will be a 180-day time limit for release of unclassified versions of court opinions. This deadline will allow the public to learn more quickly how effective these reforms are in practice, and the increased transparency should provide an additional tool to hold the government accountable.