Wave of Surveillance Bills Continues as House Intelligence Democrat Introduces FISC Proposal

"We're expecting another half a dozen bills to go in,” American Civil Liberties Union Legislative Counsel Michelle Richardson told us. The ACLU, among others, has attacked the government for its surveillance activities and taken legal action to end them. The bills most likely to advance will be those from committee heads with jurisdictional authority over such surveillance activities, she predicted. She pointed to the bill from House Judiciary Committee ranking member John Conyers, D-Mich., and Rep. Justin Amash, R-Mich., and another from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. Mike Lee, R-Utah, as two examples, and said smaller bills may end up absorbed into such larger ones as they move forward. House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., an author of the Patriot Act, also plans to introduce a bill to address what he sees as overreach in how intelligence agencies interpret Section 215 of the law, he has said. “That is going to be a substantive bill,” Richardson said. The fall will include certain “natural targets” for Congress, such as intelligence reauthorization, she added.

President Barack Obama last month asked Congress to work with the White House in changing how government conducts surveillance (CD Aug 12 p5), and Director of National Intelligence James Clapper said this month he expects surveillance operations will be legislatively amended if kept (CD Sept 13 p9). The FISC should have an independent voice representing civil liberties, Obama advocated.

Schiff dubbed his legislation the Ensuring Adversarial Process in the FISA Court Act (http://bit.ly/18IqsPi). “By allowing a public interest advocate to participate in certain cases and advocate on behalf of the privacy interests of the American people, we can strengthen the protection of our civil liberties,” Schiff said Friday in a statement. “Even though the FISC’s deliberations are necessarily secret in nature, it’s vital that the American people have confidence that there are voices within the process arguing forcefully and effectively on behalf of the Fourth Amendment and privacy concerns of ordinary Americans.”

The Privacy and Civil Liberties Oversight Board would, under the bill’s provisions, be able to appoint several independent lawyers not associated with the government. These attorneys would be experienced in privacy and Fourth Amendment concerns, making them “public interest advocates,” according to Schiff’s office. The FISC could appoint these attorneys for major cases involving constitutional and privacy issues, it said. The board did not opine on the merits of the proposal when contacted, citing ongoing examination of these surveillance topics.

The bill also proposed that nongovernmental parties and groups be able to file amicus briefs before the FISC more easily, and independent technical experts would be better able to judge how effective the government is operating and testify, Schiff’s office said. Schiff said the bill would allow “contrary views” before the FISC judges. “It may also result in the restructuring of programs to improve privacy safeguards while assuring the government access to information necessary to protect the country,” he said. The experts should have skills in such areas as “computer networks, telecommunications, encryption, and cybersecurity,” according to the bill text.

"The lack of an adversarial process in the FISA court is just one of that court’s many deficiencies,” Electronic Frontier Foundation Senior Staff Attorney David Greene told us, saying he speaks on his own behalf and not EFF’s because he hadn’t checked the organization’s official position on Schiff’s bill. “So this bill is certainly a good start on FISA court reform,” Greene said. “Additional reforms are needed to make the court’s operations more transparent, such as a more defined process for the timely publication of opinions."

"We definitely think [the Schiff bill] could improve the internal FISA court process,” Richardson said, comparing it to legislation Sen. Richard Blumenthal, D-Conn., advanced earlier this year (CD Aug 2 p5). “We also don’t want that to take the place of substantive reform.”

"I think Schiff’s is a well-written bill,” though “not as ambitious” as Blumenthal’s, Center for Democracy & Technology Senior Counsel Greg Nojeim told us. He said the Republican-sponsored bills are most likely to move in the House, where they have the majority, and unlikely in the Democrat-controlled Senate. Among other bills on the table, he called Sensenbrenner’s expected bill to be “pretty ambitious” from what he has heard, although he has not yet seen a draft, and expressed reluctance about the expected bill from Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., calling it “modest” and saying it would not end bulk collection of phone records. “I don’t think the civil liberties groups will support it.” He called Leahy’s bill the lead bill on surveillance in the Senate.

Richardson said other bills take on Section 215 more directly. Schiff has addressed FISC in other proposed legislation, which called for certain declassifications of FISC opinions and for the president to nominate and the Senate to confirm the 11 judges of the FISC. Members of Congress, however, will be “very supportive of something like the Schiff proposal,” Richardson predicted, calling Schiff “influential because he’s on the Intelligence Committee” as well as moderate, earning him credibility within his caucus. The fall will include multiple hearings on the issues, more bills, more document disclosures, draft recommendations from the White House-appointed surveillance review group and wild cards, all of which will give these discussions a certain momentum, she said.