On July 29, 2014, senator Patrick Leahy, introduced the USA Freedom act of 2014. The bill would change the way that the government collects digital surveillance under the Foreign Surveillance Intelligence Act by significantly increasing privacy protections and adding some transparency to the FISA court process. Here are some of the notable changes:
Scope of collection must be limited
Under current law, the government has been able to intercept all communication data from a given region or service provider. The new bill limits data collection to something it calls a “specific selection term”. This is defined to mean a particular individual, account, address, device or other identifier that must “limit the scope of the tangible things sought to the greatest extent reasonably practicable.” The term specifically excludes searches based only on a location or service provider.
Reasonable, articulable suspicion
The current law allows the government to collect data if, “there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” The new law would require a showing that, “there is a reasonable, articulable suspicion that such a specific selection term is associated with a foreign power engaged in international terrorism.”
Reasonable, articulable suspicion (or RAS) is a well known term in criminal law; it’s the level of suspicion needed to justify investigatory detentions like traffic stops. It requires more than a mere hunch but it’s much less than probable cause. The Constitution establishes that, absent certain limited exceptions, a search must be justified by probable cause and authorized by warrant.
Privacy advocates in FISA court
Right now, when the government applies to a FISA judge for permission to collect information, the government is the only advocate in the room. The proposed bill allows the FISA court to appoint lawyers to argue in favor of privacy and civil liberties. The lawyers would not be representing people subject to data collection but would serve as amicus curiae, or “friends of the court.” Appointment is only allowed in cases that present “a novel or significant interpretation of the law” and the court can avoid the appointment if it issues a written order stating that it’s not appropriate. Also, these lawyers can only access the classified materials forming the basis for the application if they hold the needed security clearance and if such access is “consistent with the national security of the United States.”
Using NSA data in criminal court is still OK
Searches authorized under FISA need not be justified by probable cause or approved through the normal warrant process. Still, the new bill would continue to allow the data to be used in criminal courts. However, if the court finds that the application or procedures to collect data were deficient, the information collected under the deficiency will not be admissible unless the Attorney General signs off and the information involves a threat of death or serious harm. Also, if the government corrects the deficiency, the court has discretion to allow the information in anyway.
National Security Letters are less secret
National security letters allow the FBI to request almost any entity to disclose information on a consumer of their services. Thousands have been served on libraries, ISPs and telecom companies. Current law requires recipients to comply and prohibits them from telling anyone they got the letter. The new law would allow the NSL gag order only if the FBI certifies that it’s needed to do one of the following:
- Protect national security
- Avoid interfering with an investigation
- Avoid interfering with diplomatic relations
- Protect life or safety
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