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More EFF News: The Safeguarding Americans' Private Records Act Builds on Earlier Surveillance Reform
Last week, Sens. Ron Wyden (D–Oregon) and Steve Daines (R–Montana) along with Reps. Zoe Lofgren (D–California), Warren Davidson (R–Ohio), and Pramila Jayapal (D–Washington) introduced the Safeguarding Americans’ Private Records Act (SAPRA), H.R 5675.
This bipartisan legislation includes significant reforms to the government’s foreign intelligence surveillance authorities, including Section 215 of the Patriot Act.
Section 215 of the PATRIOT Act allows the government to obtain a secret court order requiring third parties, such as telephone providers, Internet providers, and financial institutions, to hand over business records or any other “tangible thing” deemed “relevant” to an international terrorism, counterespionage, or foreign intelligence investigation.
If Congress does not act, Section 215 is set to expire on March 15.
...This renewed bipartisan interest in FISA transparency and accountability—in combination with the March 15 sunset of Section 215—provides strong incentives for Congress to enact meaningful reform of an all-too secretive and invasive surveillance apparatus.
Congress passed the 2015 USA FREEDOM Act in direct response to revelations that the National Security Agency (NSA) had abused Section 215 to conduct a dragnet surveillance program that siphoned up the records of millions of American’s telephone calls. USA FREEDOM was intended to end bulk and indiscriminate collection using Section 215 ...
Here are some of the highlights:
Ending the Call Detail Records Program
SAPRA, however, would make the much-needed reform of entirely removing the CDR authority and clarifying that Section 215 cannot be used to collect any type of records on an ongoing basis...The bill also includes several amendments intended to prevent the government from using Section 215 for indiscriminate collection of other records.
More Transparency into Secret Court Opinions
this bill clarifies that all significant FISC opinions, no matter when they were written, must be declassified and released. It also requires that future opinions be released within six months of the date of decision.
previous requests under Section 215 included cell site location information, which can be used for invasive tracking of individuals’ movements. But the landmark 2018 Supreme Court decision in Carpenter v. United States clarified that individuals maintain a Fourth Amendment expectation of privacy in location data held by third parties, thus requiring a warrant for the government to collect it.
Expanding the Role of the FISC Amicus
Reporting
The FBI in particular has refused to count the number of searches of Section 702 databases it conducts using Americans’ personal information, leading to a recent excoriation by the FISC. SAPRA requires that the transparency reports include the number of Americans whose records are collected under 215, as well as the number of US person searches the government does of data collected under Sections 215 and 702.
Notice and Disclosure of Surveillance to Criminal Defendants
SAPRA ... requires notification to defendants in cases involving information obtained through Section 215. Second, and more generally, it clarifies that notice to defendants is required whenever the government uses evidence that it would not have otherwise learned had it not used FISA...in the FISA context, despite the existence of a disclosure mechanism, it has been completely toothless; the history of the law, no defendant has ever successfully obtained disclosure of surveillance materials.
It’s important for Congress to take this opportunity to codify additional due process protections. It’s a miscarriage of justice if a person can be convicted on unlawfully acquired evidence, yet can’t challenge the legality of the surveillance in the first place. Attorneys for defendants in these cases need access to the surveillance materials—it’s a fundamental issue of due process...
SAPRA is a strong bill that includes many necessary reforms. We look forward to working with lawmakers to ensure that these and other provisions are enacted into law before March 15.
This bipartisan legislation includes significant reforms to the government’s foreign intelligence surveillance authorities, including Section 215 of the Patriot Act.
Section 215 of the PATRIOT Act allows the government to obtain a secret court order requiring third parties, such as telephone providers, Internet providers, and financial institutions, to hand over business records or any other “tangible thing” deemed “relevant” to an international terrorism, counterespionage, or foreign intelligence investigation.
If Congress does not act, Section 215 is set to expire on March 15.
...This renewed bipartisan interest in FISA transparency and accountability—in combination with the March 15 sunset of Section 215—provides strong incentives for Congress to enact meaningful reform of an all-too secretive and invasive surveillance apparatus.
Congress passed the 2015 USA FREEDOM Act in direct response to revelations that the National Security Agency (NSA) had abused Section 215 to conduct a dragnet surveillance program that siphoned up the records of millions of American’s telephone calls. USA FREEDOM was intended to end bulk and indiscriminate collection using Section 215 ...
Here are some of the highlights:
Ending the Call Detail Records Program
SAPRA, however, would make the much-needed reform of entirely removing the CDR authority and clarifying that Section 215 cannot be used to collect any type of records on an ongoing basis...The bill also includes several amendments intended to prevent the government from using Section 215 for indiscriminate collection of other records.
More Transparency into Secret Court Opinions
this bill clarifies that all significant FISC opinions, no matter when they were written, must be declassified and released. It also requires that future opinions be released within six months of the date of decision.
previous requests under Section 215 included cell site location information, which can be used for invasive tracking of individuals’ movements. But the landmark 2018 Supreme Court decision in Carpenter v. United States clarified that individuals maintain a Fourth Amendment expectation of privacy in location data held by third parties, thus requiring a warrant for the government to collect it.
Expanding the Role of the FISC Amicus
Reporting
The FBI in particular has refused to count the number of searches of Section 702 databases it conducts using Americans’ personal information, leading to a recent excoriation by the FISC. SAPRA requires that the transparency reports include the number of Americans whose records are collected under 215, as well as the number of US person searches the government does of data collected under Sections 215 and 702.
Notice and Disclosure of Surveillance to Criminal Defendants
SAPRA ... requires notification to defendants in cases involving information obtained through Section 215. Second, and more generally, it clarifies that notice to defendants is required whenever the government uses evidence that it would not have otherwise learned had it not used FISA...in the FISA context, despite the existence of a disclosure mechanism, it has been completely toothless; the history of the law, no defendant has ever successfully obtained disclosure of surveillance materials.
It’s important for Congress to take this opportunity to codify additional due process protections. It’s a miscarriage of justice if a person can be convicted on unlawfully acquired evidence, yet can’t challenge the legality of the surveillance in the first place. Attorneys for defendants in these cases need access to the surveillance materials—it’s a fundamental issue of due process...
SAPRA is a strong bill that includes many necessary reforms. We look forward to working with lawmakers to ensure that these and other provisions are enacted into law before March 15.
https://www.eff.org/deeplinks/2020/01/new-bill-would-make-needed-steps-toward-curbing-mass-surveillance?fbclid=IwAR12I96-oIUvvb1g3wrapig8NWa1mzrpljnodgnowgO-LozdnjTgq8gJkgk
