By Shana-Tara O’Toole | Due Process Institute | President and Jeremiah Mosteller | Policy Counsel
Editor’s Note: Please see the bottom of this blog for a timeline of developments and to explore how the Due Process Institute has worked to advanced reforms.
“The way things are supposed to work is that we’re supposed to know virtually everything about what they [the government] do: that’s why they’re called public servants. They’re supposed to know virtually nothing about what we do: that’s why we’re called private individuals.” ― Glenn Greenwald
A significant majority of Americans report that they are concerned about the use of their data by the government.
And for good reason. Over 18 years ago, our elected leaders in Washington hastily adopted the PATRIOT Act as a good-faith response to the horrific events occurring on 9/11. This legislation, however, continues to serve as one of the biggest threats to Americans’ Constitutional rights and has been consistently used to justify some of the worst privacy abuses in our nation’s history.
For example, federal agencies have repeatedly utilized this legislation to track innocent individuals across the United States in direct conflict with federal law. In 2018 alone, the National Security Agency (NSA) collected information on over 434 million calls made from 19 million different phone numbers in its unreasonably broad investigation of only 11 individuals suspected of terrorist activities. This particular program was ended voluntarily by the NSA in 2018, but both its statutory authority and other concerning surveillance programs are still in operation.
Past reform efforts, including the USA FREEDOM Act, have failed to reestablish the protections necessary to restore individual rights and end discriminatory surveillance programs undertaken by various federal agencies. The Safeguarding Americans’ Private Records Act of 2020 will restore some of those reasonable safeguards by significantly reforming the Foreign Intelligence Surveillance Act and Section 215 of the PATRIOT Act in ways that will not undermine our national security.
Among other positive changes, the Safeguarding Americans’ Private Records Act would:
· End statutory authority for the unreasonably broad collection of phone records by the NSA through the Section 215 Call Detail Records program;
· Clarify the protections for sensitive location information established by the Supreme Court’s recent decision in Carpenter v. United States;
· Ensure that any Section 215 data collection conforms to the warrant requirement applied to law enforcement activities in the criminal context;
· Investigate any potential infringements upon any individual’s First Amendment rights through Section 215 programs; and
· Prohibit federal agencies from utilizing parallel investigations as a mechanism to protect evidence collected in a manner that conflicts with federal law or Constitutional protections.
We note that while this bill contains a variety of key reforms that will significantly reduce the number of blatant power abuses by federal agencies, it does not fix all the problems existing in the current Foreign Intelligence Surveillance Act. We are proud to join an incredibly broad coalition of organizations that support these important reforms as a positive step towards a future where every individual’s right to privacy is protected and assured by our government.
Timeline of Developments:
February 12th, 2020: Due Process Institute joined coalition letter endorsing the Safeguarding Americans’ Private Records Act.
February 14th, 2020: Due Process Institute released one-pager detailing the reforms needed to restore reasonable safeguards to the Foreign Intelligence Surveillance Act.
February 24th, 2020: The U.S. House Committee On The Judiciary scheduled a markup on the USA FREEDOM Reauthorization Act of 2020. Due Process Institute analyzed the differences in this legislation and SAPRA here and joined a bipartisan coalition letter calling on the Committee to adopt significant amendments that would strengthen that separate legislative package.
February 26th, 2020: The U.S. House Committee On The Judiciary postponed the markup on the USA FREEDOM Reauthorization Act of 2020. Our President and Founder released a statement calling on Congress to consider these reforms without partisan games.
March 11th, 2020: The United States House hastily passed a revised USA FREEDOM Reauthorization Act of 2020.
March 15th, 2020: Inaction by the United States Senate resulted in Section 215 authorization lapsing for federal agencies to continue and Senator Burr argued that these agencies have the authority to run these programs without explicit Congressional approval.
March 16th, 2020: The United States Senate considered motion to impose cloture and pass the USA FREEDOM Reauthorization Act of 2020. Due Process Institute joined bipartisan coalition letter calling on senators to oppose the motion and instead advance meaningful reforms to the Section 215 programs. Senate passed legislation that extends authorization of Section 215 programs for 77 days so they can consider comprehensive reforms.
May 6th, 2020: Due Process Institute joined Defending Rights & Dissent, Demand Progress, and FreedomWorks in sending a letter to federal agencies in an effort to confirm they have ended the surveillance activities whose authorization expired on March 15th, 2020.
May 7th, 2020: Due Process Institute led a bipartisan coalition letter to Congressional leadership in the House and Senate Judiciary Committees asking them to provide assistance in securing confirmation from federal agencies that they have ended the surveillance activities authorized by the lapsed Foreign Intelligence Surveillance Act provisions.
May 11th, 2020: Due Process Institute joined a letter calling for the U.S. Senate to adopt three amendments to the USA FREEDOM Reauthorization Act. Two of these amendments would clarify the need for federal agencies to secure a proper warrant before conducting surveillance activities against American citizens.
May 13th, 2020: The United States Senate considered two amendments to the House passed USA FREEDOM Reauthorization Act. The first amendment, sponsored by Senators Ron Wyden and Steve Daines, would have required federal agencies to secure a warrant before they collect internet search and browsing histories inside the United States, failed by one vote. The second amendment was sponsored by Senators Mike Lee and Patrick Leahy and succeed with overwhelming support from both parties. This amendment improved third-party oversight of federal agency activities allowed under FISA.
May 14th, 2020: The United States Senate considered and rejected a final amendment to the USA FREEDOM Reauthorization Act sponsored by Senator Rand Paul. The Senate then voted to send the amended legislation back to the House for reconsideration by a margin of 80-16. Due Process Institute released a statement praising the bipartisan collaboration to reform the Foreign Intelligence Surveillance Act and calling for the House to “promptly pass this legislation.”
May 18th, 2020: Due Process Institute joined a letter from a bipartisan coalition of 80+ organizations urging the House to adopt the Wyden/Daines amendment when it votes for the USA FREEDOM Reauthorization Act.
July 21st, 2020: Senators Patrick Leahy and Mike Lee sent a letter to the Attorney General and the Director of National Intelligence requesting that they confirm the termination of certain federal surveillance programs that Congress has failed to reauthorize and provide detailed explanations for the continuation of similar activities under other questionable legal authorities. These request mirror the ones included in the letters the Due Process Institute sent to federal agencies on May 6th and Congressional leadership on May 7th.
August 5th, 2020: Due Process Institute and 10 other groups send a letter to Congressional leadership asking them to utilize their oversight powers of federal agencies to ensure these agencies are not conducting illegal surveillance of people in the United States through questionable legal authorities. This letter was covered by the technology website Gizmodo in detail.
August 8th, 2020: Federal agencies officially fail to respond to request from Senators Leahy and Lee or the multiple letters sent by our coalition.
September 25th, 2020: Representatives Warren Davidson and Pramila Jayapal sent a letter to Attorney General and the Director of National Intelligence similar to the letter sent by Senators Lee and Leahy requesting information about federal surveillance activity.