Legislative Staff Memo on USA Freedom Act Amendments

There may still be a few Lawfare readers who are not so disgusted with their legislature—and their legislators—that they are still following the Senate’s ongoing machinations over the USA Freedom Act. For those who can still contemplate the subject without nausea, here’s the state of play in a nutshell. The sunsetting provisions of the Patriot Act lapsed last night. But the Senate apparently is moving forward after-the-fact on a bill that is substantially similar—with a few differences—from the bill it could not move either six months ago or a week ago. The net result of the brinksmanship that caused senators not to move this bill then is exactly zero. The bill has not changed from last week. And it has not changed all that much from last year, and to the extent it has changed, it changed in the House—in the course of that body’s doing its job—not because of the Senate’s refusal to do its job. This is a simply terrible way to do business. The result has been endless uncertainty for intelligence operators and no win for civil liberties either.

I spent part of today at a very moving Law Day ceremony at NSA, where former General Counsel Raj De received a much-deserved award and Senator Sheldon Whitehouse gave a very interesting talk—the text of which I hope to publish in the coming days. Whitehouse opened his speech by noting that the warm applause he received was unwarrantedly gracious given his institution’s performance in recent months on matters of concern to NSA staff. He’s right.

And the Senate is not done. This evening, I received the following internal Senate Republican staff memo detailing the amendments still to come. If any of them passes, of course, the Senate bill differ from the House’s and the two will require reconciliation:

Procedural Posture/Summary

The Senate is now on the USA Freedom Act, H.R. 2048. There are amendments pending to the bill making four primary substantive changes to the underlying House bill:

• Amendment #1449: a complete substitute amendment that is the House-passed bill with two changes:

1. data retention: require service providers give 180 days’ notice of an intent to retain call detail records for a period less than 18 months.
2. effectiveness certification: require DNI certify new program is “operationally effective.”

• Amendment #1450: lengthening transition period from six months to one year.

• Amendment #1451: changing the amicus structure of the underlying bill.

An amendment numbered 1452 incorporates all of these changes into one amendment in the form of a complete substitute.

Cloture has been filed on the bill. The Majority Leader has said this vote is expected at10:30AM Tuesday June 2. If cloture is invoked, all pending germane amendments are entitled to a vote post-cloture at a simple majority-vote threshold.

Background

The amendments made to FISA by Patriot Act section 215 authorized the government to acquire by court order telephone metadata call records in bulk that telecommunications service providers already collect and maintain for their business purposes. That legislative authority has now expired.

The USA Freedom Act ends that program and creates in its place a program where the telecommunications providers maintain the call detail records for an unspecified period of time and the government is authorized to apply for a court order to obtain from the providers those records for a specific phone number. Such a program is not currently in existence and would need to be created. The House passed its version of that bill by a vote of 338-88. The Senate is now considering the bill.

Amendment 1449

This amendment is a complete substitute for the USA Freedom Act that is the underlying bill with two changes.

The first adds a new section 107 to the underlying bill to require electronic communications service providers subject to a FISA court order to produce call detail records to give 180 days’ notice to the Attorney General if they intend to retain call detail records for a period less than 18 months.

The second is a new certification requirement added to the effective date section of the underlying bill, which is now at section 110. It requires the DNI review the implementation of the transition from the current program to the new program and certify at least 30 days prior to the effective date that the new program is “operationally effective to allow the timely retrieval of foreign intelligence information,” will not harm U.S. national security, and will ensure the protection of classified information and intelligence sources and methods related to the production of call detail records. The transition is not conditioned on this certification.

The Federal Communications Commission requires communications providers retain their records for only 18 months. The underlying USA Freedom Act has no independent data retention requirement. In order to perform a query comparable to what is done today, the government would likely have to obtain multiple court orders directed at multiple third parties. It is the aggregation into one database and its historical breadth that makes the current program valuable.

The Attorney General’s support for the USA Freedom Act was predicated upon “the existing practices of communications providers in retaining metadata.” This amendment is critical to ensuring the Attorney General is notified if those practices are to change.

Amendment 1450

Amendment 1450 is to the substitute amendment number 1449. The underlying substitute amendment has a section 110 providing for the effective date of the bill to be 180 days after enactment. Amendment number 1450 changes that to be 12 months after enactment.

To be sure, the NSA Director has said the transition can be accomplished in six months, but that is “with provider cooperation.” The providers have intimated in many ways they are not keen on cooperation in this matter.

Amendment 1451

Amendment 1451 is an amendment to amendment number 1450. Section 401 of the underlying substitute amendment directs the court to designate at least five individuals who can serve as amicus in the court’s proceedings to advocate “legal arguments that advance individual privacy and civil liberties.” This is not a dispassionate aide to the court’s work, but rather a third party given a specific substantive argument to make before the court. The amicus must be appointed in any case involving a “novel or significant interpretation of the law” unless the court issues a finding that such an appointment is not appropriate.

The underlying bill represents an enormous change to the practice of the FISA court. It effects not just how the court might handle a telephone metadata case, for example, but any case on its docket. It goes far beyond fixes to just the metadata program.

Moreover, the USA Freedom Act requires the FISA Court to appoint an amicus in certain circumstances. This raises separation of powers concerns, as a court is generally left to control the organization of its proceedings.

Amendment 1451 is responsive to the judiciary’s continual opposition to the amicus structure of the USA Freedom Act. First and foremost, the Court has regularly advised the amicus structure of the USA Freedom Act “could impede the FISA courts’ role in protecting the civil liberties of Americans.” This comes most recently in the form of a letter to Congress from the director of the Administrative Office of the U.S. Courts (attached).

Given the requirement that the amicus be appointed, along with the charge about the arguments it is supposed to present to the court, the letter points out it is eminently reasonable that government practitioners at the FISA court would have the perception that the amicus is really there to “oppose intelligence activities” and “curtail” an intelligence agency’s work. This would have the unhelpful effect of “deterring the necessary and critical cooperation and candor” required in the proceedings. Given the nature of the proceedings of the court, impairing that candor would ultimately be to the detriment of “the effective protection of privacy and civil liberties.”

The letter summarizes that the amicus structure of the underlying bill is creating more problems than it is solving, saying the hindrance to candor presents “greater challenges to the FISA Courts’ role in protecting civil liberties than does the lack of a non-governmental perspective on novel legal issues or technological developments.”

The amicus provision of the underlying bill is apparently in response to concerns about the ex parte nature of FISA court proceedings in which only the federal government appears. But ex parte proceedings are not an uncommon practice in criminal cases and are the appropriate means by which federal judges handle sensitive matters.

Amendment 1451 provides that section 401 shall not have effect, and in its place creates a new section 110A in the underlying bill. It basically reaffirms the inherent authority of a court to appoint amicus curiae to assist the court in its work. The FISA court is not opposed to a true amicus provision per se, as the letter praised the approach contained in the FISA Improvements Act of 2013.