H.R. 3361, USA FREEDOM Act

H.R. 3361

USA FREEDOM Act

Committee
Judiciary

Date
May 22, 2014 (113th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Thursday, May 22, 2014, the House will consider H.R. 3361, the USA FREEDOM Act, as amended, under a closed rule.  H.R. 3361 was introduced on October 29, 2013 by Rep. James Sensenbrenner (R-WI) and was referred to the House Judiciary, Intelligence, and Financial Services Committees.  The bill was marked up by the Judiciary Committee on May 7, 2014 and was ordered reported, as amended, by a vote of 32-0.[1]  The bill was marked up by the Intelligence Committee on May 8, 2014 and was ordered reported, as amended, by a voice vote.[2]  The Financial Services Committee discharged the bill.

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[1] Committee Report 113-452, Part I.
[2] Committee Report 113-452, Part II.

Bill Summary

The amendment in the nature of a substitute to H.R. 3361 makes reforms to intelligence gathering programs under the Foreign Intelligence Surveillance Act (FISA).  Of particular note, the bill ends the bulk collection of Americans’ records under Section 215 of the Patriot Act, pen register and trap and trace authority, and national security letters.  It creates a new, narrowly-tailored authority for the collection of call records and imposes new limitations and safeguards to protect civil liberties while preserving national security capabilities.

The following Section-by-Section Analysis of the substitute amendment was prepared by the House Judiciary Committee:

Title I – FISA Business Record Reforms

Sec. 101 – Additional requirements for call detail records.
Creates a new process for the collection of call detail records pursuant to the Administration’s proposal.  For counterterrorism purposes only, when the government has reasonable articulable suspicion that a specific selection term is associated with a foreign power or an agent of a foreign power, it may apply to the FISA court for an order requiring the ongoing production of call detail records related to that specific selection term and two “hops.”  The government may renew these orders every 180 days.

The term “call detail records” is defined to mean a telephone number, an IMSI or IMSEI number, a telephone calling card number, or the time or duration of a call.  The term does not include the contents of any communication; nor does it includes names, addresses, or financial information; nor does it include cell site location information.

Except for records that are determined to be foreign intelligence information, the government must promptly destroy all information obtained under this program.

Sec. 102 – Emergency authority.
Creates a new emergency authority for the use of Section 215.  The Attorney General may authorize the emergency production of tangible things, provided that such an application is presented to the court within seven days.  If the court denies an emergency application, the government may not use any of the information obtained under the emergency authority except in instances of a threat of death or serious bodily harm.

Sec. 103 – Prohibition on bulk collection of tangible things.
Provides that Section 215 may only be used where a specific selection term is provided as the basis for the production of tangible things.  No order issued under Section 215 may authorize the bulk collection of tangible things.

Sec. 104 – Judicial review of minimization procedures for the production of tangible things.
Provides that the court may evaluate the adequacy of minimization procedures under Section 215.

Sec. 105 – Liability protection.
Provides liability protections to third parties who provide information, facilities, or technical assistance to the government in compliance with an order issued under Section 215.

Sec. 106 – Compensation for assistance.
Permits the government to compensate third parties for producing tangible things or providing information, facilities, or technical assistance in accordance with an order issue under Section 215 or to comply with this Act.

Sec. 107 – Definitions
Provides definitions for the terms “call detail records” and “specific selection term.”

Sec. 108 – Inspector general reports on business records orders.
Requires the Inspector General of the Department of Justice to conduct a comprehensive review of the use of Section 215 with respect to calendar years 2012 to 2014.  Also requires the Inspector General of the Intelligence Community to assess the value and use of intelligence obtained under Section 215 over the same period.

Sec. 109 – Effective date.
Provides that the new telephone metadata program, the new Section 215 emergency authority, and the prohibition on bulk collection of tangible things under Section 215 take effect 180 days after enactment.

Sec. 110 – Rule of Construction.
Provides a rule of construction that nothing in this Act shall be construed to authorize the production of the contents of electronic communications by electronic communication service providers under Title V of FISA.

Title II – FISA Pen Register and Trap and Trace Device Reform

Sec. 201 – Prohibition on bulk collection.
Provides that the pen register and trap and trace device authority may not be used without a specific selection term as the basis for selecting the telephone line or other facility to which the pen register or trap and trace devices is to be attached or applied.

Sec. 202 – Privacy procedures.
Directs the Attorney General to adopt procedures to safeguard nonpublicly available information concerning U.S. persons consistent with the need to protect national security.

Title III – FISA Acquisitions Targeting Persons Outside the United States Reforms

Sec. 301 – Minimization procedures.
Codifies the requirement that the government must minimize the acquisition, and prohibit the retention and dissemination of, wholly domestic communications captured under Section 702 and prohibit the use of certain discrete U.S. person communications.

Sec. 302 – Limits on use of unlawfully obtained information.
Provides that the government may not use information acquired outside the scope of court-approved targeting and minimization procedures.

Title IV – Foreign Intelligence Surveillance Court Reforms

Sec. 401 – Appointment of amicus curiae.
Provides that both the FISA court and the FISA Court of Review shall, if deemed appropriate, appoint an individual to serve as amicus curiae in a case involving a novel or significant interpretation of law.  Permits the court to appoint amicus curiae in any case.

The presiding judges of the courts will designate five individuals who are eligible to serve as amicus curiae.  These individuals shall possess expertise in privacy and civil liberties, intelligence collection, telecommunications, or any other area that may lend legal or technical expertise to the courts, and shall possess appropriate security clearances.

Sec. 402 – Declassification of decisions, orders, and opinions.
Requires the Director of National Intelligence, in consultation with the Attorney General, to conduct a declassification review of each decision, order, or opinion of the FISA court that includes a significant construction or interpretation of law.  In the interest of national security, the DNI may waive the declassification requirement, in which case the Attorney General shall provide a summary of the decision.

Title V – National Security Letter Reform

Sec. 501 – Prohibition on bulk collection.
Prohibits the use of various national security letter authorities without the use of a specific selection term as the basis for the national security letter request.

Title VI – FISA Transparency and Reporting Requirements

Sec. 601 – Additional reporting on orders requiring production of business records.
In addition to existing annual reporting requirements, requires the government to report on the number of requests made for call detail records under the new call detail record authority.

Sec. 602 – Business records compliance reports to Congress.
Requires the government to provide to Congress a summary of compliance reports related to the use of Section 215.

Sec. 603 – Annual report by the Government on orders Entered.
Requires the Director of the Administrative Office of the United States Court to make an annual report on the number of orders issued under sections 105, 304, 402, 501, 702, 703, and 704 of FISA, as well as the number of appointments of individuals to serve as amicus curiae to the FISA court.

Requires the DNI to annually publicly report the number of orders issued and estimated number of targets under FISA and National Security Letter authorities.

Sec. 604 – Public reporting by persons subject to FISA orders
Permits a person subjected to a FISA order or National Security Letter to publicly semi-annually report aggregate information relating to such orders.

Sec. 605 – Reporting requirements for decisions of the Foreign Intelligence Surveillance Court.
Requires the Attorney General to provide to the relevant committees, within 45 days of each decision, order, or opinion, including a modification or denial of an application, that includes a significant construction or interpretation, a copy of each such decision and a brief statement of the relevant background.

Sec. 606 – Submission of reports under FISA.
Includes the House Judiciary Committee in several existing reporting requirements.

Title VII – Sunsets

Sec. 701 – USA PATRIOT Improvement and Reauthorization Act of 2005.
Aligns the sunset of the three sun-setting provisions of the USA PATRIOT Act with the sunset of the FISA Amendment Act on December 31, 2017.

Background

The Foreign Intelligence Surveillance Act (FISA), which was first enacted in 1978, provides a framework for government agencies to obtain authorization to conduct certain types of searches and surveillance while gathering foreign intelligence information.[1]  Such authorization “is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created by FISA . . .”[2]  Following the September 11 terrorist attacks, Congress enacted the USA PATRIOT Act (Patriot Act), which amended FISA and other statutes to expand the scope of federal authority for intelligence gathering.  Additional updates and reauthorizations have been made since that time.

“In June 2013, a former defense contractor and CIA employee released classified material on top-secret NSA data collection programs operated under [FISA].  The Guardian published a classified order issued by the [FISC] requested by the FBI to compel the ongoing production – for a three-month period – of transactional call detail records of ‘telephony metadata.’  Telephony metadata includes the numbers of both parties on a call, unique identifiers, and the time and duration of all calls.”[3]  A White Paper released by the Administration in August 2013 cited Section 215 of the Patriot Act as the legal authority for the metadata program.[4]  When it was enacted, Section 215 amended the procedures under FISA for obtaining records by expanding the range of records that could be sought to include “tangible things,” and by lowering the standard that had to be met before a court could issue an order.[5]  “The previous standard required a showing of specific and articulable facts giving reason to believe the information related to a foreign power or the agent of a foreign power.  As amended [by the Patriot Act], the provision [requires] ‘a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to a [foreign intelligence, international terrorism, or espionage investigation.]”[6]  Authorization for the provision is set to expire on June 1, 2015.[7]

Recent attention has also extended to the bulk collection of data under pen register and trap and trace authorities,[8] and the government’s use of National Security Letters (NSLs)[9] to obtain information from telephone and internet companies.  In recent years, nondisclosure orders have been applied to 97% of NSLs, generally prohibiting the recipient from disclosing the information request.

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[1] Edward C. Liu,Reauthorization of the FISA Amendments Act, Congressional Research Service (Apr. 8, 2013) at 1.
[2] Id.
[3] Summary: H.R. 3361, the USA FREEDOM Act, House Judiciary Committee.
[4] Richard M. Thompson II, Legal Sidebar: NSA’s Telephone Metadata Program: Recent Developments, Congressional Research Service (Aug. 15, 2013).
[5] Edward C. Liu & Charles Doyle, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization, Congressional Research Service (June 16, 2011) at 16.
[6] Id.
[7] Id.
[8] “Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of an incoming call on a particular phone line.”  Id. at FN 30.
[9] “National Security Letters are regularly used in FBI counterterrorism investigations and are roughly comparable to administrative subpoenas.  They have been described as ‘form letters signed by an FBI agent’ used to request and collect non-content consumer records and related information from ‘telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions.’” Jerome P. Bjelopera, The Federal Bureau of Investigation and Terrorism Investigations, Congressional Research Service (Feb. 19, 2014) at 6.

Cost

A CBO estimate is currently unavailable.

Additional Information

For additional information, please see the following materials provided by the House Judiciary Committee:

For questions or further information contact the GOP Conference at 5-5107.