What’s in H.R. 6172, the House’s Compromise FISA Reform Bill?

The House of Representatives today passed, on a 278-136 vote, a bipartisan bill that would reauthorize certain intelligence-related authorities that are set to expire on March 15 as well as make substantive changes to the Foreign Intelligence Surveillance Act (FISA) and a number of related laws. The bill builds off an earlier bill introduced on Feb. 24. The compromise bill, H.R. 6172, was worked out between House leadership as well as the House Judiciary and House Intelligence Committees. Congress is on recess next week and the Senate is expected to act on the bill this week. But the bill could run into problems there. Some Senate Republicans are not happy with the bill. Sens. Mike Lee and Rand Paul have tweeted their displeasure. If the Senate cannot pass H.R. 6172 before the existing authorities expire on March 15, it is possible the Senate may act on another short-term extension. Meanwhile, Attorney General William Barr has expressed his support for the compromise bill.

The New York Times offers good context for the compromise bill. Some key quotes from the article are as follows:

• The bill would extend the three expiring tools—like the F.B.I.’s ability to get FISA court orders for business records deemed relevant to a national security investigation—while ending legal authority for an expensive, dysfunctional and defunct N.S.A. system that had allowed counterterrorism analysts to swiftly access logs of Americans’ phone calls.
• The bill would also expand when FISA judges—who normally hear only from the government when deciding whether to grant a surveillance application—should appoint an outsider to critique the government’s position. Currently, judges are supposed to do so only when addressing a novel and significant question of interpreting surveillance law.
• Under the bill, the FISA court would also be directed to consider appointing a government critic when an application “presents exceptional concerns” about protecting the First Amendment rights of a surveillance subject—a formulation that could apply to investigations touching on political campaigns or religious activity.
• The bill would not make a change that many civil liberties and privacy groups have advocated: letting defense lawyers read FISA applications if their clients are prosecuted on the basis of evidence derived from such wiretaps or searches, as defense lawyers are permitted to do in ordinary criminal cases.
• But it would also expand criminal penalties issues surrounding misuse of FISA, raising from five to eight years the prison sentence for engaging in electronic surveillance without following procedures.
• The bill would also outlaw the disclosure of the existence of an application or classified information contained in it, as well as knowingly making a false declaration before the FISA court. The move would be more symbolic than substantive because those were already illegal.
• And it would make clear that the government cannot use a business records order to collect information—like cellphone location data—that in a criminal investigation requires a search warrant, which has a higher legal standard.

The following is our section-by-section analysis of the substantive portions of the bill:

H.R. 6172: USA FREEDOM Reauthorization Act of 2020

TITLE I—FISA BUSINESS RECORDS

Sec. 101. Repeal of authority to access on an ongoing basis call detail records. This section amends Section 501 of FISA to repeal the authority to access call detail records on an ongoing basis. In addition, an affirmative prohibition is inserted to clarify that a Section 501 FISA application “may not seek an order authorizing or requiring the production on an ongoing basis of call detail records.’’

Sec. 102. Protection of certain information. This section adds a new paragraph to Section 501, stating that a Section 501 FISA application may not seek an order authorizing or requiring the production of (1) a tangible thing under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, or (2) cell site location or global positioning system (GPS) information.

It clarifies, however, that for purposes of authorizing the emergency production of such information pursuant to Section 105(e) of FISA, the attorney general may treat the production of cell site location or GPS information as electronic surveillance, rather than business records. (Section 105(e) authorizes the emergency employment of electronic surveillance by the attorney general under certain circumstances, including when an emergency exists that requires obtaining foreign intelligence information before an order authorizing such surveillance can be obtained.)

Sec. 103. Use of information in trials, hearings, or other proceedings. This section amends Section 501(h) of FISA to clarify that information obtained or derived from the production of tangible things pursuant to a Section 501 investigation “shall be deemed” to be information acquired from an electronic surveillance pursuant to Title I of FISA. This is the case unless a court or other U.S. authority finds that providing notice to an aggrieved person would harm the national security of the U.S.

An “aggrieved person” is defined as the target of the investigation where the activities or communications of the target are described in the tangible things the government intends to use or disclose in any trial hearing, or other proceeding.

Sec. 104. Limitation on retention of business record information. This section limits the retention of tangible things, and information therein, to five years unless one of six conditions is met. These conditions include that the tangible thing or information is “foreign intelligence or counterintelligence,” is evidence of a crime, or the director of the FBI finds that retaining the tangible thing or information is necessary to protect the national security of the U.S. It also amends the annual reporting requirement to the Intelligence and Judiciary Committees to include a description of each time an exception to the five-year limitation on retention of information occurs.

Sec. 105 states that the amendments will apply on or after the date of enactment.

TITLE II—ACCURACY AND INTEGRITY OF FISA PROCESS

Sec. 201. Certifications regarding accuracy of FISA applications. This section amends Titles I, III, IV, V and VII of FISA to require certifications by the FISA applicant that the attorney for the government and the Department of Justice has been apprised of all information that might reasonably call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made, or otherwise raise doubts with respect to findings required for the application.

It also adds a requirement that the attorney general, in consultation with the FBI, issue regulations within 180 days of enactment to ensure that applications submitted by the FBI to the Foreign Intelligence Surveillance Court (FISC) are “accurate and complete.”

Sec. 202. Description of techniques carried out before targeting United States person. This section requires applications for orders approving electronic surveillance under Title I to include, in the existing multipart certification requirement in Section 104(a)(6), a statement describing the investigative techniques carried out prior to making the application. This provision only applies to targets that are U.S. persons. It makes the same change in the similar Title III certification in Section 303(a)(6).

Sec. 203. Investigations relating to federal candidates and elected federal officials. This section adds an additional certification requirement (as was done in Section 202) in Titles I and III of FISA to include a requirement that if the target of the electronic surveillance (Title I) or physical search (Title III) “is an elected Federal official or a candidate in a Federal election, []the Attorney General has approved in writing of the investigation.”

Sec. 204. Removal or suspension of Federal officers for misconduct before Foreign Intelligence Surveillance Court. This section states that an “employee, officer, or contractor of the United States Government who engages in deliberate misconduct with respect to proceedings before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review shall be subject to appropriate adverse actions, including, as appropriate, suspension without pay or removal.”

Sec. 205. Penalties for offenses related to FISA. This section amends the criminal code (18 U.S.C. § 1623(a)) to provide for a “not more than eight years” penalty for false declarations before FISC and the Foreign Intelligence Surveillance Court of Review (FISCR). It also increases the penalty to eight years (from five) for intentionally engaging in electronic surveillance without authorization, or disclosing or using information obtained by electronic surveillance without authorization. It also adds a new section that the penalty also applies to “an employee, officer, or contractor of the United States Government [who] intentionally discloses an application, or classified information contained therein, for an order under any title of this Act to any person not entitled to receive classified information.”

Sec. 206. Contempts constituting crimes. This section amends the criminal code (18 U.S.C. § 402) to establish that being in contempt of the FISC or FISCR will be treated the same as being in contempt of district courts.

Sec. 207 states that the amendments will apply on or after the date of enactment.

TITLE III–FOREIGN INTELLIGENCE SURVEILLANCE COURT

Sec. 301. Declassification of significant decisions, orders, and opinions. Section 301 amends Section 602 of FISA to require the director of national intelligence (DNI) to complete declassification review and publicly release the FISA court decisions, orders, and opinions that “include a significant construction or interpretation of any provision of law, including any novel or significant construction.” The requirement also applies to any decisions, orders, or opinions that result from a proceeding in which an amicus curiae had been appointed. The DNI must review and release the decisions within 180 days of their issuance.

Sec. 302. Appointment of amici curiae and access to information. Section 302 expands the authority to appoint amici curiae. Under the section, the FISA court shall appoint an amicus curiae to assist the court with consideration of any application for review that, in the opinion of the court, presents a novel or significant interpretation of law or presents exceptional concerns about the protection of the rights of a U.S. person under the First Amendment (unless the FISC issues a finding that the appointment would not be appropriate). Once appointed, an amicus curiae may petition the court to certify to the FISCR a question of law for review. If the court denies the petition, it must provide for the record its reasons for the denial in writing. Upon certification of a question of law, the FISCR shall appoint the amicus curiae to assist in the court’s consideration of the question, unless FISCR issues a finding that the appointment would not be appropriate. An amicus curiae may also petition the FISCR to certify for review a question of law to the Supreme Court.

Section 302 also amends Section 103(i)(6)(ii) to allow amici curiae to make a submission to the court requesting access to any particular materials or information that the amicus believes to be relevant to its duties. An amicus may consult with other amici regarding any of the information relevant to any assigned proceeding, if the FISA court or the court of review determines that that information is relevant to the duties of the amicus. An individual may serve as an amicus for a five-year term and the presiding judges may, for good cause, jointly reappoint the individual to one additional term.

Sec. 303. Effective and independent advice for Foreign Intelligence Surveillance Court. Section 303 permits the FISA court and the court of review to jointly employ legal advisers to assist the courts in all aspects of considering the matters before the courts, including providing advice on issues of law or fact in applications, requesting information from the government related to an application, identifying concerns with an application and proposing conditions for the approval of an application. These legal advisers are subject solely to the direction of the presiding judges of the FISC and FISCR.

Sec. 304. Transcripts of proceedings and communications regarding applications. Section 304 requires that proceedings under FISA are transcribed and that those transcriptions be maintained under security measures established by the chief justice in consultation with the attorney general and the DNI. The transcriptions shall be stored in a file associated with the relevant application or order. In addition, Section 304 requires that the attorney general and the FISC maintain all written substantive communications between the Justice Department and the court, including the identity of the employees of the court who make the communications.

Sec. 305. Information provided in annual reports. Section 305 adds requirements to the annual report by the director of the Administrative Office of the United States Courts. The report must include the number of times that the attorney general required the emergency production of tangible things under Section 501(i)(1) and instances in which the application was later denied by a judge. It also must include the number of certifications by the FISCR and the number of requests to certify a question made by an amicus curiae to the FISC or FISCR. Section 305 also clarifies that the report must include a good-faith estimate of the number of unique identifiers used to communicate information collected pursuant orders under Section 501, including information received electronically and through hard-copy or portable media.

TITLE IV–Transparency, Sunsets, and Other Matters

Sec. 401. Congressional oversight. Section 401 clarifies that nothing in the act may be construed to preclude the House of Representatives Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence from receiving in a timely manner, upon request, applications submitted to the FISC, orders of the court, and relevant materials relating to such applications and orders.

Sec. 402. Establishment of compliance officers. Section 402 adds a new section, Section 605, concerning compliance officers. It states that the head of each covered agency shall appoint a federal officer to serve as the compliance officer for that agency. Each compliance officer shall be responsible for overseeing the agency’s compliance with this act. Each officer shall conduct routine audits concerning the agency’s compliance with the act’s requirements regarding submitting applications to the FISC (including the accuracy of the applications) and with the act’s minimization, targeting, querying and accuracy procedures. The compliance officer must also routinely conduct assessments of the efficacy of the minimizing, targeting, querying, and accuracy procedures and annually submit findings to the assistant attorney general for national security and the head of the relevant agency. This assessment would include any recommendations for improvement of the FISA process. The officer is also required to ensure the remediation of any compliance issues.

Each inspector general of the relevant agencies must annually submit an assessment of the agency’s implementation of this section to the FISC, and to the Intelligence and Judiciary Committees in both the House and the Senate.

These requirements apply to the departments and agencies that submit applications to the FISC under the act.

Sec. 403. Public reports on information obtained or derived under FISA and protection of First Amendment activities. Section 403 requires the attorney general to make publicly available within 180 days: (1) a report explaining how the government determines whether information is “obtained or derived” from activities authorized under the act; and (2) a report explaining how the government interprets Section 501(a)’s prohibition on conducting investigations of U.S. persons solely on the basis of activities protected by the First Amendment. The attorney general must ensure that these reports are detailed and use hypothetical fact patterns to describe how the government conducts its analysis.

Sec. 404. Mandatory reporting on certain orders. Section 404 expands the requirements of the annual report issued by the director of the Administrative Office of United States Courts to include not just the number of search terms and queries concerning a known U.S. person but also those search terms and queries that are “reasonably likely to identify a United States person.” Section 404 also strikes certain exceptions concerning information held by the FBI for what must be included in the report.

Sec. 405. Report on use of FISA authorities regarding protected activities and protected classes. Section 405 requires that the Privacy and Civil Liberties Oversight Board (PCLOB) make publicly available within a year of the enactment of the act a report concerning the extent to which First Amendment activities and protected classes are used to support targeting decisions under the authorities pursuant to FISA and the impact of the use of that authority on those activities and protected classes. The protected characteristics include race, ethnicity, national original, religious affiliation, sex, and any other protected characteristic determined appropriate by the PCLOB. In addition to the public report, the PLCOB may submit a classified annex to the House and Senate Judiciary and Intelligence Committees.

Sec. 406. Improvements to Privacy and Civil Liberties Oversight Board. Section 406 amends Section 1061(h)(4) of the Intelligence Reform and Terrorism Prevention Act of 2004, which relates to the term of the members of the Privacy and Civil Liberties Oversight Board. It establishes a term of six years; notes that the person can be reappointed; specifies that a vacancy “shall be filled in the manner in which the original appointment was made”; and adds that even after a member’s term expires, that person can continue to serve until the member’s successor has been “appointed and qualified.”

Sec. 407. Sunsets. Extends the relevant provisions of the USA Patriot Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until Dec. 1, 2023. The effective date is whichever comes first between “the date of the enactment of this Act or March 15, 2020.”

Sec. 408 Technical amendments.