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Thursday, December 8, 2016

by Kara Brandeisky, ProPublica.

Although the House defeated a measure that would have defunded the bulk phone metadata collection program, the narrow 205-217 vote showed that there is significant support in Congress to reform NSA surveillance programs. Here are six other legislative proposals on the table.

1) Raise the standard for what records are considered “relevant”

The Foreign Intelligence Surveillance Court has reportedly adopted a broad interpretation of the PATRIOT Act, ruling that all the records in a company’s database could be considered “relevant to an authorized investigation.” The leaked court order compelling a Verizon subsidiary to turn over all its phone records is just one example of how the Foreign Intelligence Surveillance Court has interpreted the statute.

Both Rep. John Conyers (D-MI) and Senator Bernie Sanders (I-VT) have introduced bills requiring the government to show “specific and articulable facts” demonstrating how records are relevant.  Similarly, legislation introduced by Senator Mark Udall (D-CO) would require any applications to include an explanation of how any records sought are relevant to an authorized investigation.

2) Require NSA analysts to obtain court approval before searching metadata

Once the NSA has phone records in its possession, Senator Dianne Feinstein (D-CA) has explained that NSA analysts may query the data without individualized court approvals, as long as they have a “reasonable suspicion, based on specific facts” that the data is related to a foreign terrorist organization.

A bill from Rep. Stephen Lynch (D-MA) would require the government to petition the Foreign Intelligence Surveillance Court every time an analyst wants to search telephone metadata. From there, a surveillance court judge would need to find “reasonable, articulable suspicion” that the search is “specifically relevant to an authorized investigation” before approving the application. The legislation would also require the FBI to report monthly to congressional intelligence committees all the searches the analysts made.

3) Declassify Foreign Intelligence Surveillance Court opinions

Right now, court opinions authorizing the NSA surveillance programs remain secret. Advocacy groups have brought several Freedom of Information Act suits seeking the release of Foreign Intelligence Surveillance Court documents, but the Justice Department continues to fight them.

Several bills would compel the secret court to release some opinions. The Ending Secret Law Act — both the House and Senate versions — would require the court to declassify all its opinions that include “significant construction or interpretation” of the Foreign Intelligence Surveillance Act. Under current law, the court already submits these “significant” opinions to congressional intelligence committees, so the bill would just require the court to share those documents with the public.

The bills do include an exception if the attorney general decides that declassifying an opinion would threaten national security. In that case, the court would release an unclassified summary of the opinion, or — if even offering a summary of the opinion would pose a national security threat — at least give a report on the declassification process with an “estimate” of how many opinions must remain classified.

Keep in mind, before Edward Snowden’s disclosures, the Justice Department argued that all “significant legal interpretations” needed to remain classified for national security reasons. Since the leaks, the government has said it’s now reviewing what, if any, documents can be declassified, but they said they need more time.

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