Last Updated on May 19, 2020, 9:59 am ET
Last week, the House Judiciary Committee and the House Permanent Select Committee on Intelligence unanimously passed the USA FREEDOM Act (H.R. 3361). The bill, originally proposed by Rep. Sensenbrenner (R-WI) in October 2013, had 151 co-sponsors and an identical version was introduced in the Senate by Sen. Leahy (D-VT). Some of the language of the original bill was altered by a Manager’s Amendment just prior to the Judiciary Committee’s markup. Previous coverage of the USA FREEDOM Act is available here.
The USA FREEDOM Act, as amended and passed through the Judiciary Committee**, would make the following key changes and clarifications to the USA PATRIOT Act, among others:
- Prohibits bulk collection of telephone records under Section 215, also known as the “business records” or “library records” provision.
- Requires a statement of facts demonstrating that there are reasonable grounds to believe that call detail records requested under Section 215 are relevant to an authorized investigation and that “there are facts giving rise to a reasonable articulable suspicion that such specific selection term is associated with a foreign power or agent of a foreign power.” Specific selection term is defined as a term “to uniquely describe a person, entity or account.” The version of the USA FREEDOM Act as introduced did not include the limitation to specific selection term as the basis of a records request and therefore creates a stronger prohibition against collections of records generally.
- Limits the definition of call detail records for collection under Section 215 to originating and terminating phone numbers and call duration. The definition explicitly excludes communications content, subscriber information, and cell site location.
- Permits an order authorizing production of records for two “hops,” that is for the records of the person targeted as well as the call detail records of those in contact with the person targeted and those in contact with those contacts.
- Prohibits the bulk collection of tangible things under Section 215 by requiring inclusion of “a specific selection term to be used as the basis for the production.”
- Requires specific selection term for the basis of production where a pen register, a device that records all numbers called from a particular telephone line, is used.
- Prohibits using Section 702, which is designed to permit targeting a non-U.S. person, if “a purpose” is to target the communications of a U.S person. This portion of the bill as passed by the House Judiciary Committee is not as strong as the original version, which prohibited backdoor searches of U.S. communications.
- Creates the role of amicus curiae in the FISA court, unless the court finds that such an appointment is not appropriate. Under the version of the bill originally introduced, rather than having the court appoint amicus curiae, the bill intended to create an Office of the Special Advocate to advocate on behalf of interpretations protecting privacy rights and civil liberties and would be able to appeal FISA court decisions.
- Requires the attorney general to conduct a declassification review of FISA court decisions and orders that include a “significant construction of law” and make them publicly available to the greatest extent possible. Where declassification would endanger national security, the bill would direct the attorney general to provide an unclassified summary.
- Harmonizes the Section 215 reforms with national security letter reform.
- Permits companies receiving surveillance orders to publicly report on the numbers of orders received and numbers of users/accounts subject to the orders.
**The discussions in this blog referring to the USA FREEDOM Act refer to the version passed by the House Judiciary Committee and House Permanent Select Committee on Intelligence last week. This version included the change made by the Manager’s Amendment and markup in the House Judiciary Committee. However, the version first introduced by Rep. Sensenbrenner is identical to the version introduced by Sen. Leahy and this original version of the bill remains in the Senate.