06.26.13

The FISA Accountability and Privacy Protection Act of 2013

For Background Purposes

 

Public revelations about two classified data collection programs have brought renewed attention to the powerful Government surveillance authorities contained in the Foreign Intelligence Surveillance Act (FISA), particularly the impact on law-abiding Americans of provisions in the USA PATRIOT Act and the FISA Amendments Act of 2008.  The Director of National Intelligence has acknowledged that they are being conducted pursuant to Section 215 of the USA PATRIOT and Section 702 of FISA.  The FISA Accountability and Privacy Protection Act of 2013 will improve the privacy protections and accountability provisions associated with these authorities, and also strengthen oversight and transparency with regard to other provisions of the USA PATRIOT Act.  Summarized below are some of the highlights of the bill’s provisions:

 

New and Shorter Sunset Provisions to Ensure Proper Oversight

 

  • Shortens the sunset for the FISA Amendments Act from December 2017 to June 2015.  The June 2015 sunset would align with expiring USA PATRIOT Act provisions, and enable Congress to address these FISA provisions all at once, instead of in a piecemeal fashion.
  • Adds new June 2015 sunsets on statutes authorizing use of National Security Letters (NSLs). 

 

Higher Standards for PATRIOT Act Surveillance Authorities

 

  • Elevates the threshold standard for obtaining records through Section 215 of the USA PATRIOT Act by requiring the government to show relevance to an authorized investigation and a link to one of three categories of a foreign agent, power, or group.
  • Requires that the Foreign Intelligence Surveillance Court approve minimization procedures for data collected under Section 215.
  • Requires the government to provide a statement of the facts and circumstances to justify its belief that the Section 215 records for tangible things, or Pen Register and Trap and Trace Devices (PR/TT) sought are relevant to an authorized investigation to obtain foreign intelligence information. 

 

  • Strikes the one-year waiting period before a recipient can challenge a nondisclosure order for Section 215 orders and strikes the conclusive presumption in favor of the government on nondisclosure. 
  • Requires the FBI to retain an internal statement of facts demonstrating the relevance of information sought to its investigation before it can issue a National Security Letter (NSL).

 

  • For “roving” wiretaps, requires law enforcement to identify “with particularity” the target of a wiretap request under FISA.

 

Increased Transparency and Public Reporting

 

  • Expands public reporting on the use of National Security Letters and authorities under the Foreign Intelligence Surveillance Act, including an unclassified report on the impact of the use of these authorities on the privacy of United States persons. 

 

  • Fixes a constitutional deficiency found by the Second Circuit Court of Appeals in Doe v. Mukasey by shifting the burden to the government to seek a court order for an NSL non-disclosure order, and allows the recipient of such a non-disclosure order to challenge it at any time.

 

Increased Judicial Review and Inspector General Oversight

 

  • Requires Inspector General audits on the use of Section 215 orders, NSLs, and other surveillance authorities under the USA PATRIOT Act. 

 

  • Provides for a comprehensive review of FISA Amendments Act (Section 702) surveillance by the Inspector General of the Intelligence Community (IC IG).
  • Clarifies the scope of the annual reviews for Section 702 currently required by the law, in order to cover all agencies that have targeting or minimization procedures approved by the FISA Court.

 

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