Reauthorizing Gov’t Surveillance Authorities & Reforming the FISA Process (H.R. 6172)

What is H.R. 6172?

(Updated February 8, 2022)

(UPDATE - 5/27/20): This bill — the USA FREEDOM Reauthorization Act of 2020 — would reauthorize surveillance and reform authorities under the Foreign Intelligence Surveillance Act (FISA), Section 215 of the PATRIOT Act, and the subsequent USA FREEDOM Act through December 1, 2023. Those authorities expired on March 15, 2020. A breakdown of the reforms included in this legislation, including adopted amendments, can be found below.

FISA BUSINESS RECORDS

This section would repeal the authority to collect call detail records on an ongoing basis and up to two “hops” from the target. It would prohibit the use of Section 215 authorities to collect cell site location information, or the use of Section 215 to collect records or information where a person has a reasonable expectation of privacy and where a warrant would be required to collect the same records or information for law enforcement purposes.

The government would be required to give notice to an individual who is the target of an investigation and whose information is collected under Section 215 when the government intends to use that information in a trial or other proceeding against them. The person would be able to challenge the admission of that evidence. An exception to these provisions would be included if the government demonstrates that providing notice would harm national security.

The government would be prohibited from retaining materials under Section 215 for more than five years.

ACCURACY & INTEGRITY OF FISA PROCESS

For all applications submitted to the Foreign Intelligence Surveillance Court (FISC), the applicant would have to certify that the Dept. of Justice (DOJ) has, to the best of their knowledge, been apprised of all information that might reasonably call the accuracy of the application into question or may otherwise raise doubts with respect to the applicable findings required under law. Applications made under FSA would have to describe other investigative techniques carried out before making the application. 

In cases where the target of an application for electronic surveillance or a physical search is a federal official or a candidate in a federal election, the application would be required to state in writing that the Attorney General has approved of the investigation. 

Federal officers, employees, or contractors who engage in deliberate misconduct before the FISC or FISC-R (Foreign Intelligence Surveillance Court of Review) would be subject to appropriate adverse actions. A criminal penalty of up to 8 years imprisonment for anyone who knowingly makes a false statement before the FISC or FISC-R would be established; the maximum penalty for unauthorized use of electronic surveillance would be increased from 5 to 8 years; and a penalty of up to 8 years imprisonment would be established for any federal officer, employee, or contractor who intentionally discloses a FISA application or classified information contained in a FISA application to a person not authorized to receive classified information.

This bill would clarify that contempt before the FISC or FISC-R is punishable by up to 6 months imprisonment under the existing criminal contempt statute.

FOREIGN INTELLIGENCE SURVEILLANCE COURT

The Director of National Intelligence (DNI) would be required to conduct a declassification review of significant FISC & FISC-R opinions within 180 days. The types of opinions requiring a declassification review would be expanded to include those involving a novel or significant construction or those that result from a proceeding in which an amicus has been appointed. The requirement to conduct declassification reviews would also apply to opinions issued before the enactment of the USA FREEDOM Act.

The requirement of FISC & FISC-R to appoint an amicus would be expanded to include cases presenting exceptional concerns about the protection of the rights of a U.S. person under the First Amendment, unless the court issues a finding that such an appointment would be inappropriate. An amicus before the FISC could petition the court to certify a question of law for review by the FISC-R; and an amicus before the FISC-R could request that the FISC-R certify a question of law for review before the Supreme Court. Amicus’s ability to access relevant information would be strengthened and amici could seek access to additional information and consult among themselves. Amici would serve 5-year terms and reappointments by the court for good cause would be permitted.

The FISC & FISC-R would be authorized to employ legal advisors to assist the courts in their duties, including by providing advice on issues presented by applications, identifying relevant concerns, and proposing appropriate requirements or conditions for approval of applications. The advisors would report solely to the presiding FISC & FISC-R judges.

Proceedings before the FISC & FISC-R would be required to be transcribed, and transcripts would have to be stored in a file associated with the relevant application or order. The DOJ & FISC would be required to maintain records of all substantive written communications between the Dept. and the court.

TRANSPARENCY, SUNSETS & MISCELLANEOUS

This bill would clarify that nothing in it could be construed as preventing the congressional intelligence committees from receiving FISA applications, orders, and related materials upon request, and in a timely manner.

The head of each agency that submits applications to the FISC would be required to appoint a compliance officer for overseeing that agency’s compliance with FISA, including the targeting, minimization, querying, and accuracy procedures.  The compliance officer would be required to conduct routine audits and the agency inspector general would be required to submit annual reviews to the FISC & Congress about the implementation of these provisions.

Within 180 days, the Attorney General would be required to produce a report explaining how the government determines whether information is “obtained or derived” from FISA activities for purposes of FISA’s notice requirements; and a report explaining how the government interprets the prohibition against conducting an investigation of a U.S. person “solely upon the basis of activities protected by the First Amendment to the Constitution.”

Reporting requirements related to instances in which intelligence officials query Section 702 holdings for information about U.S. persons would be strengthened, and the FBI’s exemption from this reporting requirement would be removed.

The Privacy and Civil Liberties Oversight Board (PCLOB) would be required to issue a report regarding the manner in which the government’s use of FISA authorities may be premised on or may impact First Amendment activities or targets’ statuses as members of protected classes. Members of the PCLOB could be reappointed to consecutive terms and continue serving after their terms expired if they choose to do so.

Section 215, “roving wiretap,” and “lone wolf” authorities would be reauthorized through December 1, 2023.

AMENDMENTS

• Offered by Sens. Patrick Leahy (D-VT) & Mike Lee (R-UT), this amendment would expand and strengthen the role of amicus curiae in the Foreign Intelligence Surveillance Court to advocate for privacy & civil liberties interests in cases related to activities protected by the First Amendment; “sensitive investigative matters” such as surveillance of a political candidate or public official; or the approval of new surveillance programs or technology. The amici could file appeals for review by the Foreign Intelligence Surveillance Court (FISC) or the Supreme Court. Additionally, the amendment would expand requirements for federal law enforcement to disclose exculpatory information in FISA applications.
  
• Offered by Reps. Warren Davidson (R-OH) & Zoe Lofgren (D-CA), this amendment would prohibit Section 215 of the PATRIOT Act from being used for warrantless surveillance of Americans' internet website browsing & internet search history. it would also require reports about prior surveillance of Americans' internet activities, including a good faith estimate of the number of persons & devices surveilled and the total number of browsing data & search histories collected.

Argument in favor

This bipartisan bill contains significant reforms to both the federal government’s surveillance powers aimed at protecting civil liberties, and to the FISA process to ensure that agencies aren’t misleading the courts so that they can spy on average American citizens or political campaigns. It may not be perfect, but this bill prevents a lapse in these authorities that could jeopardize national security.

Argument opposed

This bill may be bipartisan, but it doesn’t go far enough in reforming the government’s surveillance authorities to ensure that agencies like the FBI don’t mislead FISA courts and engage in illegal surveillance of American citizens. If more robust protections for civil liberties can’t be added to the package, the surveillance authorities should expire until a deal is reached.

Impact

People surveilled using these authorities; intelligence & law enforcement agencies; the FISC & FISC-R; and Congress.

Cost of H.R. 6172

A CBO cost estimate is unavailable.

Additional Info

In-Depth: House Judiciary Chairman Jerry Nadler (D-NY) & Intelligence Chairman Adam Schiff (D-CA) introduced this legislation to reauthorize the federal government’s surveillance authorities and issued the following statement:

“Along with House Leadership, we have engaged in bipartisan negotiations with input from many members to get to a deal on reforming FISA while reauthorizing important national security provisions set to expire this weekend. Through those negotiations, we have been able to incorporate significant reforms to increase civil liberty and privacy protections to the base bill, and additional provisions that should garner bipartisan support. As with any negotiation, no one side is getting everything they want, but we believe it’s important to enhance transparency and privacy safeguards whenever possible. This bill would build on the achievements of the USA Freedom Act to increase the oversight and transparency of the FISA process. We look forward to working with our Members to pass this legislation, which would mark a significant step forward for civil liberties and avoid the possibility of a less progressive Senate extension or the expiration of authorities that are vital to national security.”

Attorney General William Barr expressed his support for this reauthorization bill:

“I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people. I am pleased that the bill contains a number [of] provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms. It is of the utmost importance that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward.”

The co-chairs of the Congressional Progressive Caucus, Reps. Pramila Jayapal (D-WA) and Mark Pocan (D-WI) released a statement that they oppose the reauthorization:

“For months, we worked hard to secure vital reforms needed to overhaul the expansive surveillance powers authorized in Section 215 and the Foreign Intelligence Surveillance Act. Unfortunately, the final bill falls short of the reforms we requested last fall and are insufficient to protect the civil rights and liberties of the American public. It’s disappointing that Congress will not take this rare bipartisan opportunity to end sweeping, unconstitutional surveillance programs. Given the lack of these critical reforms, we will be voting no on the final legislation this week.”

The conservative House Freedom Caucus released a statement that it will officially oppose this legislation:

“Recent revelations that FISA was severely and repeatedly used to spy on a presidential campaign are beyond the pale--if the government can misuse this system to spy on a presidential campaign, they can surely do it to any other American citizen. As Congress considers reauthorizing FISA, anything short of significant and substantive reforms would betray the trust of the American people. The House Freedom Caucus will oppose any bill that does not meet a Constitutional standard for the the protections of American citizens’ rights. We will also oppose any ‘clean’, short-term reauthorization of the current, harmful version of FISA. Enhanced penalties for abusing the system and additional layers of certification from the Department of Justice and the FBI are insufficient to gain our support, particularly when, to date, no one has been charged with a crime for previous abuses. A proposal for additional scrutiny when elected officials and candidates are the target of investigations similarly misses the point: politicians don’t need more protection from government spying than their fellow citizens. More fundamental changes to standards of evidence and process that mirror as closely as possible our Article III courts are needed to gain our support.”

Of Note: In response to allegations that the FBI abused its authorities and misled the FISA court in seeking approval for its surveillance of Donald Trump’s 2016 presidential campaign, DOJ Inspector General Michael Horowitz released a report detailing 17 significant errors and omissions on the FBI’s part.

The IG found “seven significant inaccuracies and omissions” in the FBI’s initial application to the FISC for surveillance of Trump campaign advisor Carter Page:

• The FBI omitted information obtained from another federal agency that had a prior relationship with Carter Page and had approved him as an “operational contact” and that he had provided the agency with information about his prior contacts with Russian intelligence officers.

• It included a characterization of previous reporting by Christopher Steele as “corroborated and used in criminal proceedings”, which overstated the significance of it and wasn’t approved by Steele’s handling agent. (Steele’s opposition research dossier on Trump was relied upon by the FBI in part to justify the surveillance).

• The FBI omitted information about the reliability of a key Steele sub-source whom Steele himself told the Crossfire Hurricane team was a “boaster” and an “egoist” who “may engage in some embellishment”.

• The application incorrectly asserted that Steele didn’t provide information to the press that was used in a Yahoo News article and had only shared his opposition research with the FBI and Fusion GPS (the client he produced the dossier for).

• The application omitted Papadopoulous’ consensually monitored statements to the FBI denying that anyone associated with the Trump campaign was collaborating with Russia or outside groups like WikiLeaks regarding the release of Hillary Clinton’s emails.

• The application omitted Page’s consensually monitored statements to the FBI that he had “literally never met” or “said one word to” Paul Manafort, which if true were in tension with claims that Page was participating in a conspiracy with Russia by acting as an intermediary for Manafort on the campaign’s behalf.

• The application included Page’s consensually monitored statements to the FBI that the agency believed supported its theory that he was a Russian agent, but omitted other statements he made that, if true, contradicted claims he’d met with Russians about the Clinton emails.

The above inaccuracies and omissions were included in all three FISA renewal applications, and the IG found 10 additional significant errors in the renewal applications, including:

• Omitted information from people who had professional contacts with Steele who said that while he didn’t have a history of reporting in bad faith, he “didn’t always exercise great judgment” and “pursued people with political risk but no intelligence value”.

• Omitted information obtained that Steele’s reporting was going to the Clinton presidential campaign, that Steele was being paid by Glenn Simpson to discuss his report with the media, and that Steele was “desperate that Donald Trump not get elected and was passionate about him not being the U.S. President”.

• That the Crossfire Hurricane team failed to update its description of Steele after information providing greater clarity about the political origins and connections of Steele’s reporting became available, including that Simpson was hired by someone associated with the Democratic Party and/or the Democratic National Committee.

• A failure to correct the assertion that the FBI didn’t believe Steele provided information to the media after Steele made a court filing admitting to his interactions with the media.

• Omitted an FBI source validation report that found Steele suitable for continued operation but that his past contributions to the FBI criminal program were “minimally corroborated”.

• Omitted statements made by Steele’s primary sub-source, who the FBI found credible, made statements “raising significant questions about the reliability of allegations included in the FISA applications”, such as that there was “nothing bad” about communications between the Kremlin and the Trump team and that they hadn’t reported Page met with Russians.

• Omitted Page’s prior relationship with another agency despite being reminded that agency, and the DOJ’s Office of General Counsel altered an email from that agency so that it stated Page was “not a source”, which the FBI relied upon in its final renewal application.

• Omitted Papadopoulous’ statements denying that the Trump campaign was involved in the DNC email hack.

• Omitted Joseph Mifsud’s denials that he supplied Papadopoulous with information Papadopoulous shared with a friendly foreign government that the Trump campaign received an offer or suggestion of assistance from Russia.

• Omitted information indicating that Page played no role in the Republican platform change regarding Russia’s annexation of Ukraine as alleged, which was inconsistent with a factual assertion relied upon to support probable cause in all four FISA applications.

In May 2020, declassified footnotes revealed that the FBI relied on the Steele dossier in its FISA applications for surveillance of Trump campaign aide Carter Page despite warnings from the intelligence community that it may have included Russian disinformation.

Media:

• House Judiciary & Intelligence Committees Joint Press Release

• House Judiciary Section-by-Section

• Countable (PATRIOT Act)

• Countable (USA FREEDOM Act)

• Countable (IG FISA Review)

• Countable (Carter Page FISA)

Summary by Eric Revell

(Photo Credit: iStock.com / batak1)