With four provisions of the Foreign Intelligence Surveillance Act, FISA, set to expire on March 15, 2020, Congress and the President must make decisions regarding the reform of America’s predominant spy tool lest, rather than a tool of protection, it become a form of political weaponry.
The four provisions set to expire include:
1- A roving wiretap provision granting the government authority to surveil national security targets when a target exhibits deliberate, clear steps to undermine regular surveillance (such as switching phones often to avoid detection). This type of surveillance is used routinely in domestic criminal investigation so should not be controversial at the FISA level.
2- A business records provision permitting the government to obtain documents, records, identification etc.. on non-US or US persons if the materials are deemed relevant to an ongoing investigation into foreign intelligence, international terrorism or clandestine intelligence activities.
3- A call record program which authorizes the FISA Court to demand phone companies relinquish telephone metadata including otherwise private data on US citizens. The USA Freedom Act of 2015 put restraints on the FISA Court in its acquisition of detailed call records and required that requests for records meet certain conditions.
4- A “lone wolf” amendment, which has never been used and applies only to non-US persons, permits surveillance of “lone”agents of foreign power who may be inspired by a terrorist organization.
Recent FISA procedural abuses have exposed numerous significant deficiencies in the warrant application process. Reform is essential if political misconduct is to be avoided in the future.
The House Bill 6172 reauthorizes the lone wolf provision, business record acquisition and roving wiretap authority but lapses the call detail record program and specifies particular measures to tighten oversight of FISA application process (particularly in politically sensitive cases). The USA Freedom Reauthorization Act of 2020 repeals the call detail record program which the NSA admitted was difficult to implement properly in attempting to separate relevant data from that which should remain private.
New accountability measures require the attorney general to personally approve a FISA application and requires participation of amicus curiae attorneys (in theory- impartial advisors) to represent any US citizen ensnared in the process. Future FISA applications would need to include all relevant information about a potential target, including exculpatory information that even if it could put into question the government’s request. There are also provisions for accountability to those submitting requests should they have knowingly hidden information from the court, given false declaration, intentionally failed to disclose information in an application or engaged in other misleading conduct. There is concern that introducing additional parties to the process such as amicus curiae attorneys, could lead to leakage of relevant case material, therefore, punitive measures for mishandling of sensitive information should also be enumerated.
As of March 16, the reform bill is headed to the Senate (S1753). The President has told lawmakers he will not sign an extension without significant reforms. A weaponized FISA court is no better than no FISA court.
Could it be the best way to prevent future politically-driven abuses of the FISA court would include complete hearings to understand the scope of past corruption, opportunity for public input and analysis of effectiveness of the secret court since its inception?