Six Ways Congress May Reform NSA Snooping

By Kara Brandeisky, ProPublicaThis report was first published on 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-Mich., and Sen. 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 Sen. Mark Udall, D-Colo., 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, Sen. Dianne Feinstein 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-Mass., 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.

4) Change the way Foreign Intelligence Surveillance Court judges are appointed

Current law does not give Congress any power to confirm Foreign Intelligence Surveillance Court judges. Instead, the chief justice of the United States appoints the judges, who all already serve on the federal bench. The judges serve seven-year terms. Chief Justice John Roberts appointed all 11 judges currently serving on the court – ten of whom were nominated to federal courts by Republican presidents.

A bill introduced by Rep. Adam Schiff, D-Calif., would give the president the power to appoint surveillance court judges and give the Senate power to confirm. The president would also choose the presiding judge of the surveillance court, with Senate approval.

Alternatively, Rep. Steve Cohen, D-Tenn., has offered a bill that would let the chief justice appoint three judges and let the House Speaker, the House minority leader, the Senate majority leader, and the Senate minority leader each appoint two judges.

5) Appoint a public advocate to argue before the Foreign Intelligence Surveillance Court

Currently, the government officials petitioning the Foreign Intelligence Surveillance Court do not face an adversarial process. Surveillance targets do not have representation before the court, and they are not notified if a court order is issued for their data.

In 33 years, the surveillance court only rejected 11 of an estimated 33,900 government requests, though it the government has also modified 40 of the 1,856 applications in 2012. 

Two former Foreign Intelligence Surveillance Court judges – Judge James Robertson and Judge James Carr – have argued that Congress should appoint a public advocate to counter the government’s arguments. Carr wrote in the New York Times, “During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before. […]Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes.”

Sen. Richard Blumenthal, D-Conn., has promised to introduce a bill that would provide a “special advocate” to argue on behalf of privacy rights and give “civil society organizations” a chance to respond before the surveillance court issues significant rulings.

The surveillance court can actually invite advocates to argue before the court, as the Supreme Court did when the Obama administration refused to defend the Defense of Marriage Act.  

“There’s nothing in law that would prevent the FISA court from hiring an advocate as an additional advisor to the court, except the need to obtain security clearances for that advocate, which would have to be granted by the executive branch,” explained Steven Bradbury, who served as the head of the Office of Legal Counsel in the Department of Justice from 2005 to 2009.

Bradbury has argued that the surveillance court may not need a permanent public advocate because its legal advisers already fulfill that role.

6) End phone metadata collection on constitutional grounds

The Justice Department has maintained that mass phone metadata collection is “fully consistent with the Fourth Amendment.” That reasoning is based on the 1979 Supreme Court decision Smith v. Maryland, where the Court found that the government does not need a warrant based on probable cause to collect phone records. The Court reasoned that whenever you dial a phone number, you voluntarily share that phone number with a telecom, and you can’t reasonably expect a right to privacy for information shared with third parties. As a result, the Court ruled that the collection of phone records is not a “search” and does not merit protection under the Fourth Amendment.

Sen. Rand Paul, R-Ky., has introduced a bill declaring that the Fourth Amendment “shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause” — effectively shutting down the NSA’s phone metadata collection program.