The U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper has determined that the NSA’s telephone records program went far beyond what Congress authorized when it passed Section 215 of the Patriot Act in 2001. The court unequivocally rejected the government’s secret reinterpretation of Section 215. Among many important findings, the court found that Section 215’s authorization of the collection of business records that are “relevant to an authorized investigation” could not be read to include the dragnet collection of telephone records. The court also took issue with the fact that this strained application of the law was accomplished in secret and approved by the secret and one-sided Foreign Intelligence Surveillance Court (FISA Court).
EFF filed amicus briefs in this case in both the district and circuit courts, and we congratulate our colleagues at the ACLU on this significant victory. The Second Circuit’s opinion stands as a clear sign that the courts are ready to step in and rule that mass surveillance is illegal. That’s great news.
The Second Circuit’s decision, however, also marks a significant change in the context of the ongoing legislative debate in Congress. Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA.
First, the Second Circuit’s opinion should stop the idea of a "clean reauthorization" (a reauthorization with no reforms) of Section 215, which is set to expire June 1. Last month, Senate Majority Leader Mitch McConnell and Senate Intelligence Chair Richard Burr introduced S. 1035, a bill that would extend the current language of Section 215 through 2020, thereby continuing the mass spying rubber-stamped by the FISA Court.
The morning of the Second Circuit decision, both Senators took to the Senate floor to vehemently defend the bulk collection program and push for a clean reauthorization. But a clean reauthorization is much more complicated now. Congress can’t pretend that the Second Circuit's narrow reading of “relevant to an authorized investigation” doesn’t exist. It’s likely that if Congress merely does a “clean” reauthorization of Section 215, then the district court in ACLU v. Clapper will enjoin the government from using Section 215 as authorization for the call records dragnet, because the district court is bound by the Second Circuit decision. However, if a reauthorization made it clear that Congress intended to reject the Second Circuit’s narrow reading of the law, it could cause further confusion and the government could argue that Congress has fully embraced the dragnet. We’re encouraging people to call Congress and tell their lawmakers to reject Senator McConnell's clean reauthorization in order to avoid the risk that Congress might reject the Second Circuit’s decision
The USA Freedom Act Must Be Strengthened
In light of the Second Circuit’s decision, EFF asks Congress to strengthen its proposed reform of Section 215, the USA Freedom Act. Pending those improvements, EFF is withdrawing our support of the bill. We’re urging Congress to roll the draft back to the stronger and meaningful reforms included in the 2013 version of USA Freedom and affirmatively embrace the Second Circuit’s opinion on the limits of Section 215.
Changes to Reflect the Concerns of the Second Circuit
Most importantly, the Second Circuit’s correct interpretation of the law should be expressly embraced by Congress in order to avoid any confusion going forward about what the key terms in the statute mean, especially the terms “relevant” and “investigation.” This recognition could be in the bill itself or, less preferably, in legislative history. The House Judiciary Committee has already included such language in its report to the full House of Representatives, but now the Senate must include the language in the bill or in its own legislative history. This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection.
The House Report on USA Freedom, issued today, takes a step forward by stating that:
Congress’ decision to leave in place the ‘‘relevance’’ standard for Section 501 orders should not be construed as Congress’ intent to ratify the FISA Court’s interpretation of that term. These changes restore meaningful limits to the ‘‘relevance’’ requirement of Section 501, consistent with the opinion of the U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper.
Ensuring that the Senate doesn't move away from the legislative history should be a top priority as the bill moves forward. But that’s the bare minimum Congress must do.
The Second Circuit, and especially Judge Sack’s concurrence, noted a lack of both transparency and a true adversary in the FISA Court. The 2014 and 2013 USA Freedom Act had stronger FISA Court reforms, particularly around the creation of a special advocate who would argue against the government in the FISA Court.
The Second Circuit’s opinion also emphasizes that typical subpoenas seek only records of "suspects under investigation, or of people or businesses that have contact with such subjects." Under the current USA Freedom Act, the government can collect records of a "second hop,"—the numbers, and associated metadata, that have been in contact with the numbers collected initially—without any additional authorization. The bill should be changed so that the government must file another application for any further records it wants to collect. Automatically obtaining a "second hop" is unacceptable because it sweeps in too many people’s records.
The current USA Freedom Act is also out-of-sync with the court’s narrow view of permissible collection of records because it lacks a rigorous definition of the "specific selection term" the government can use to identify the records it wants to collect. This can be addressed by two changes: (1) drawing upon last year's definition in the USA Freedom Act; and, (2) closing down potential loopholes like the definition of "address" or the use of a "person" to include a corporate person.
Restoring Important Parts of 2013’s USA Freedom Act
This is also an opportunity and a new context for Congress to address the shortcomings of the newly introduced USA Freedom Act that we previously wrote about. Congress should put back key provisions that were dropped along the way as well as remove those that were introduced at the behest of the intelligence community.
First, the "super minimization" procedures, which were key privacy procedures that mandated the deletion of any information obtained about a person not connected to the investigation, should be reintroduced. Key provisions establishing a higher legal standard and compliance assessment for the use of pen register/trap-and-trace devices, legal standing to sue the government over surveillance practices, and the original transparency provisions allowing government and corporate disclosure of surveillance orders should also be resuscitated.
Second, provisions introduced by the intelligence community that must be deleted include an increase in the maximum sentence for material support to terrorism to 20 years. Another change was the introduction of a clause allowing the intelligence community to obtain an emergency exception to spy within the United States on a “non-United States person” for 72 hours—without any court order. These were added as “sweeteners” without any public showing that they are necessary.
Congress Must Demand More for Themselves and for the Public
The Second Circuit decision has changed the playing field. Members like Senators Leahy and Mike Lee and Representatives Jim Sensenbrenner, Robert Goodlatte, and John Conyers should be applauded for working incredibly hard to get the USA Freedom Act through Congress. Yet as a result of the Second Circuit decision, the USA Freedom Act's modest changes appear even smaller compared to the now judicially recognized problems with the mass collection of Americans’ records. We've supported the USA Freedom Act through all three iterations, more reluctantly each time, but with this new court opinion we’ve decided that Congress can significantly strengthen the bill if we are to support it.
The Second Circuit aptly compared the current debate to the troubled times of the 1970s. Two years ago Senator Leahy mentioned that his first vote in the Senate was for the Senate resolution that created the Church Committee. The Church Committee investigated the intelligence community for three years and ushered in the Foreign Intelligence Surveillance Act in 1978—one of the most robust surveillance reform bills ever. In that same speech, Senator Leahy vowed to "recalibrate" a failing surveillance system via the USA Freedom Act.
We urge Senator Leahy and others to draw upon the vigor of that first vote to push for a stronger reform bill. The Second Circuit’s decision mandates we not settle for less and that we strengthen the USA Freedom Act so it better protects our rights and freedoms.