CURRENT US SURVEILLANCE LEGISLATION

Lawrence KerrDecember 5, 2013

Agenda

Overview Background

Foreign Intelligence Surveillance Act (FISA) USA PARTRIOT Act

Proposed changes FISA Improvements Act Intelligence Oversight and Surveillance Reform

Act Surveillance Transparency Act USA FREEDOM Act

Questions

FISA

Foreign Intelligence Surveillance Act Ted Kennedy (D-MA) Established Foreign Intelligence Surveillance

Court (FISC) Oversee surveillance requests Ex parte Hears only from DOJ

FISA

Section 702 Acquisitions allowed for up to one year Joint authorization by AG, DNI Collected information must be:

Not on subject in US Not intentionally target US person Not target foreign person with purpose of

obtaining information on US person “reverse targeting”

USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

Introduced by Representative Jim Sensenbrenner (R-WI)

USA PATRIOT Act

Title II Section 214

Used in justifying email surveillance Non-US citizens, those suspected of terrorism

involvement, or clandestine intelligence activities

Section 215 – “Library records” Expands what records regarding communications

can be collected “tangible things” including books, papers,

records

USA PATRIOT Act

Title V Section 505 – National Security Letters

NSL originally used as means of FBI obtaining financial information about a subject

Extended to include electronic communications Extended use to Bureau Office Special Agent in

charge, as opposed to Director or Deputy Assistant Director of FBI

Includes gag order

National Security Letters

Concerns

Recent revelations on surveillance NSA Bulk collection of phone records CIA

Paying AT&T for call data Global money transfer data

Surveillance Transparency Act

Introduced August 1, 2013 by Senator Al Franken (D-MN)

Concerns about PATRIOT Act Sections 214, 215 FISA 702

Provides for mandatory government reporting on surveillance activities

Surveillance Transparency Act

Number of FISA orders issued How many individuals’ information

collected How many US persons’ information

collected is each of the categories Electronic communications content and

metadata Telephone communications content and

metadata Subscriber records

How much of this data on US persons was reviewed

Surveillance Transparency Act

Query information Number of queries run on collected data Number of queries derived from information

on US persons Does not deal with the limiting of

surveillance powers

Intelligence Oversight and Surveillance Reform Act

Introduced September 25, 2013 by Senators Ron Wyden (D-OR), Mark Udall (D-CO), Richard Blumenthal (D-CT), and Rand Paul (R-KY)

Reform surveillance law Reform surveillance court Transparency

Intelligence Oversight and Surveillance Reform Act

Reform surveillance law FISA Title V – prohibit bulk collection of phone

records, but still allow collection of information on specific suspected individuals

FISA Title IV – prohibit bulk collection of communications records (email)

NSLs – prohibit use for bulk collection, increase reporting about usage

Intelligence Oversight and Surveillance Reform Act

Section 702 "back door searches" loophole

warrantless searches In non-terrorism cases, prohibit collection of

communications about the target Strengthen the prohibition against “reverse

targeting Stronger limits on the use of unlawfully

collected information

Intelligence Oversight and Surveillance Reform Act

Reform the surveillance court Constitutional Advocate to argue against the

government when the FISC is considering significant legal and constitutional questions

Declassification of Significant FISC Opinions Permitting Constitutional Challenges

Intelligence Oversight and Surveillance Reform Act

Increase transparency Disclosure by Private Companies of Their

Cooperation with Government Surveillance Privacy and Civil Liberties Oversight Board

Issuance of Subpoenas

FISA Improvements Act

Introduced by Senator Diane Feinstein (D-CA) Prohibits bulk collection of both records and

content under Section 215, except under specific conditions and procedures

Criminal penalties for intentional unauthorized access to FISA collected data

Prohibit review of bulk records unless there exists “reasonable articulable suspicion” of involvement in terrorism

“reasonable articulable suspicion” determinations subject to FISC review

FISA Improvements Act

FISC must impose limits on number of NSA employees who may query or authorize queries on metadata database

FISC must limit number of hops in response to query over bulk data

Five year limit on records retention, with Attorney General approval to query data past three years

USA FREEDOM Act

Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring

Act

USA FREEDOM Act

Coauthored by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI) in November 2013

End bulk collection Reform FISC Increase transparency NSL reform

USA FREEDOM Act

End bulk collection Under section 215 Reverse targeting prohibition More aggressive filtering and discarding of

accidentally acquired information on Americans

USA FREEDOM Act

Reform FISC Create Office of the Special Advocate to

promote privacy concerns in closed proceedings

Reporting to ensure Congress is aware of court actions specifically, and intelligence community in general

PCLOB authority to issue subpoenas on matters of privacy and surveillance

USA FREEDOM Act

Increase Transparency AG publicly disclose all FISC decisions

involving significant interpretations of the law Service providers allowed to report

FISA orders and NSLs received How many complied with Number users/accounts in orders

Government report annually/semi-annually

USA FREEDOM Act

NSL Single standard for NSLs used for 215

collection to ensure another authority is not used to allow bulk collection

Ensure congressional review of NSL policy

Questions?

References

http://www.nytimes.com/2013/11/15/us/cia-collecting-data-on-international-money-transfers-officials-say.html

http://www.nytimes.com/2013/11/07/us/cia-is-said-to-pay-att-for-call-data.html?_r=0

http://www.justice.gov/archive/ll/highlights.htm http://www.law.cornell.edu/uscode/text/50/chapter-36 http

://www.franken.senate.gov/files/documents/130801TransparencySummary.pdf

http://www.wyden.senate.gov/download/intelligence-oversight-and-surveillance-reform-act

http://sensenbrenner.house.gov/legislation/theusafreedomact.htm

http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=3aa4ed70-e80b-4c2b-afd6-dc2e5bc75a7b

http://www.youtube.com/watch?v=XfRU48QxfQE&list=PL79B6C09B761988D9&index=1