Since the Guardian published mandating Verizon Business Network Services hand over all its customers' phone records to the National Security Agency in early June, Congress has responded with bill after bill to rein in the NSA's surveillance programs, increase transparency, and reform how the secret FISA Court is staffed and operates.
Currently there are 19 bills pending in Congress with more expected to be introduced. The legislation can be broken down into four broad categories: 1) substantive reforms to the laws the NSA believes allow it to conduct its surveillance programs, 2) disclosure of the FISA Court opinions that determined the programs were legal, 3) general reporting of the number and types of surveillance orders received by recipients and how many users affected, and 4) reforms to the FISA Court.
(For more on NSA surveillance, click here.)
With the recent narrow defeat of the to defund the bulk phone records' collection program, and more disclosures coming, Congress is more engaged on the issue of the government's suspicionless collection and surveillance of Americans' communications than it ever has been over the last decade. The ACLU will continue to work with Congress to stop the government's spying on innocent people as well as force disclosure about how these programs are used and the secret court rulings that support them. (This list will be updated as events dictate.)
SUBSTANTIVE BILLS
LEAD (total 8.2.13)
BILL NUMBER & TITLE
SUMMARY OF REFORMS
Conyers-Amash (51)
: LIBERT-E Act
215 Orders:
- Increases standard to "relevant and material"
- strikes presumption of relevance
- requires statement of specific and articulable facts giving reasonable ground to believe
- requires that tangible things must "pertain only to an individual that is the subject of such investigation"
Gag Orders:
- Strikes 1 year waiting period to challenge
- Strikes requirement that AG assertion is conclusive unless made in bad faith
Reporting:
- Reports must be available to all members of Congress in manner consistent w/nat'l sec.
- W/in 180 days, AG must make unclassified summaries of all decisions, orders, or opinions publicly available
- W/in 45 days of enactment, AG makes available to all members of Congress every report, decision, order, opinion,
- pleading, application, or memoranda of law; and unclassified summary w/in 180 days
- W/in 1 year, DoJ IG report on Secs. 215 and 702; redacted versions available to public w/in 180 days
Leahy (11)
: FISA Accountability and Privacy Protection Act of 2013
215 Orders:
- Info. sought must pertain to AFP, be relevant to activities of AFP subject to investigation, or pertain to individual in contact with, or known to, AFP
- Specific minimization procedures to be listed in application; FISC can review compliance
Pen Register and Trap and Trace Devices: Application requires statement of facts and circumstances and min. procedures
FAA Order: must provide description "with particularity" if identity of target unknown
Delayed Notice Search Warrants: notice after 7 days
Judicial Review of Production and Gag Orders:
- Strikes 1 year waiting period to challenge
- Strikes requirement that AG assertion is conclusive unless made in bad faith
Reporting:
- DoJ IG audit of 215 orders 2010-2013
- Reports must include whether minimization procedures are adequate
- Assessments of importance of information from intelligence activities and effectiveness of minimization procedures
- Reports to Congress every 6 months on NSLs, w/number of requests, and breakdowns for those relating to USP and non-USP
- Annual unclassified report to Judiciary and Intel. Comms. on authorities' use, effectiveness, and privacy impact
Sunsets:
- Rolls back sunset of FISA Amendments Act to 6/1/15
- NSL authorities under ECPA (18 USC 2709), RFPA (12 USC 3414(a)(5)), FCRA (15 USC 1681u(a), (b)), and NSA of 1947 (50 USC 3162) revert back to pre-Patriot Act standard on 6/1/15; and FCRA Section 627 (15 USC 1681v) is repealed
Udall-Wyden (9)
: A bill to modify the Foreign Intelligence Surveillance Act of 1978 to require specific evidence for access to business records and other tangible things, and provide appropriate transition procedures, and for other purposes.
215 Orders:
- Strikes presumption of relevance
- Requires that orders pertain to AFP, be relevant to activities of AFP subject to investigation, or pertain to individual in contact with, or known to, AFP
Sanders (1)
: Restore Our Privacy Act
215 Orders:
- Requires application to include specific and articulable facts giving reason to believe that each of the tangible things is relevant
- Requires that order must concern an int'l terrorism investigation conducted by FBI; pertain to AFP and activities of AFP who is subject of investigation
Reporting: Semiannual AG reports to Congress (and consistent w/nat'l sec. make available to public) detailing:
- Number of applications
- Number of applications granted, modified, denied
- Description of each application
- Analysis of effectiveness of each application
Paul (1)
: Fourth Amendment Restoration Act of 2013
4th Amendment shall be interpreted to require gov't to obtain a probable cause warrant to search Americans' phone records
Ross (1)
: Relevancy Act
215 Orders: Requires that records sought in application are "related to a specific person that is the subject of an investigation: and that any investigation must "be conducted of a specific person or specific group of persons"
Holt (1)
: To repeal the USA PATRIOT Act and the FISA Amendments Act of 2008, and for other purposes.
Repeals the Patriot Act and the FISA Amendments Act
FISC Reform:
- Increases term to 10 years but no reappointment
- Appointment of Special Masters to advise court (persons w/technological expertise)
Warrant Requirement: Requires probable cause warrant to obtain info. on USP under FISA
CALEA: Gov't cannot require companies to build in access
Whistleblower Complaints: Gov't employee or contractor can file complaint on FISA violation/mismanagement to Comptroller or Intel. Committees; retaliation prohibited
Reports: GAO conducts annual FISA compliance reviews
Lynch (3)
: Telephone Surveillance Accountability Act of 2013
Searches of Telephony Metadata: Requires judge to issue order to FBI Dir. finding "reasonable, articulable suspicion that the basis of the search is material and specifically relevant to an authorized investigation and enters an order authorizing such search" before searches through collected metadata may be conducted
DISCLOSURE - COURT OPINIONS, GOVERNMENT STATISTICS
LEAD (total 8.2.13)
BILL NUMBER & TITLE
SUMMARY OF REFORMS
Schiff-Rokita (29)
: Ending Secret Law Act
215 Order and FAA Opinion Disclosure: Declassify and make publicly available:
- All opinions submitted to Congress before enactment w/in 180 days
- All opinions submitted to Congress after enactment w/in 45 days
- If declassification impossible, then unclassified summary of decisions; or if summary impossible, then AG must issue unclassified report on "status of the internal deliberations and process regarding the declassification" w/estimates of number of decisions that will and won't be declassified
Merkley-Lee (15)
: Ending Secret Law Act
215 Order and FAA Opinion Disclosure: Declassify and make publicly available:
- All opinions submitted to Congress before enactment w/in 180 days
- All opinions submitted to Congress after enactment w/in 45 days
- If declassification impossible, then unclassified summary of decisions; or if summary impossible, then AG must issue unclassified report on "status of the internal deliberations and process regarding the declassification" w/estimates of number of decisions that will and won't be declassified
Jackson-Lee (13)
: FISA Court in the Sunshine Act of 2013
215 Order and FAA Opinion Disclosure: Declassify and make publicly available:
- All opinions submitted to Congress before enactment w/in 180 days
- All opinions submitted to Congress after enactment w/in 45 days
- If declassification impossible, then unclassified summary of decisions; or if summary impossible, then AG must issue unclassified report on "status of the internal deliberations and process regarding the declassification" w/estimates of number of decisions that will and won't be declassified
DISCLOSURE - CORPORATE SIDE
LEAD (total 8.2.13)
BILL NUMBER & TITLE
SUMMARY OF REFORMS
Larsen-Amash (4)
: Government Surveillance Transparency Act of 2013
FISA order recipient may report every 90 days on:
- Aggregate number of orders or directives
- General description of types of assistance, info., or tangible things
- Aggregate number of each type of assistance, info., or tangible thing
- Aggregate number of user accounts affected
Lofgren (10)
: Surveillance Order Reporting Act of 2013
Public Reporting of Orders Under FISA (50 USC 1801 et seq.), NSLs (18 USC 2709), RFPA (12 USC 3414(a)(5)(A)), FCRA (15 USC 1681u(a),(b), and v(a)), and Nat'l Sec. Act (50 USC 436(a)): Allows electronic service providers to, on a quarterly basis, publicly report estimates, rounded to the nearest 100, of:
- Number of Gov't demands for info. under surveillance law
- Number of demands with which provider complied during reporting period, regardless of when demands were made
- Number of users and/or accounts for which info. was demanded
Franken (11)
: Surveillance Transparency Act of 2013
Reporting on FAA: Annual reports to AOUSC and Congress must include
- Total number of individuals subject to electronic surveillance, unless number is less than 500 and reported as "fewer than 500"
- Total number of citizens and LPRs surveilled, unless "fewer than 500"
Reporting on 215 Orders: Annual unclassified reports to Intel. and Judiciary Committees and available to public w/in 7 days, include:
- Number of orders granted, modified, or denied for electronic and wire communications, and info. sought under 18 USC 2703(c)(2) (ex. name, address, call logs, etc.)
- Report on number of 215 applications; number of orders granted, modified, or denied;
- Good faith estimates of number of USPs:
- whose tangible thing produced,
- who were party to electronic or wire communication produced
- whose communications were reviewed or accessed
- who were subscribers of service that was issued order
- Productions pursuant to 18 USC 2703(c)(2)
- Number of computer-assisted search queries on 215 intel., and number of queries relating to USP electronic or wire communications
- Certification that no order were used to obtain content
- If any number is fewer than 500, that number must be reported as "fewer than 500"
Reporting on FAA: Annual unclassified report to Congress available to public w/in 7 days on total number of FAA orders issued, and good faith estimates of number of:
- individuals whose electronic or wire communications or communications records were collected under FAA
- USPs whose electronic or wire communications contents or communications records were collected under FAA
- USPs who were a party to an electronic or wire communication whose contents or records were collected under 702, and number whose communications were reviewed or accessed (separate report for each subset)
- USPs who were subscribers of electronic communication service whose records were produced pursuant to 18 USC 2703(c)(2)
- If any number is fewer than 5OO, that number must be reported as "fewer than 500"
Pen Registers and Trap and Trace Device Reporting: Annual unclassified reports to Congress and available to public w/in 7 days on:
- Number of applications
- Number or orders granted, modified, or denied, "good faith estimates" of number of individuals whose electronic or wire communications obtained; "good faith estimates" of number of USP and of number whose info. accessed
- Number of computer assisted search queries
- If any number is fewer than 5OO, that number must be reported as "fewer than 500"-"Individual" excludes group, entity, association, corporation, or governmental entity
Aggregate Reporting by Companies: Every 6 months, a person receiving order under FISA Sections 105,402, 501, 702-704, may publicly disclose about the preceding 6 months:
- total number of orders/directives received
- Percentage complied with
- Total number of individual persons, users, or accounts whose info. disclosed
- May disclose number of individual persons, users, or accounts whose electronic or wire communications contents or records, or information described in 18 USC 2703(c)(2) were produced, except for orders made under Secs. 402, 501, or 702
- If any number is fewer than 5OO, that number must be reported as "fewer than 500"
FISC REFORM
LEAD (total 8.2.13)
BILL NUMBER & TITLE
SUMMARY OF REFORMS
Blumenthal (9)
: FISA Judge Selection Reform Act of 2013
Reforms Appointment Process and Make-Up of FISC:
- Increases FISC to 13 judges
- Requires 1 judge be appointed from each federal district (incl. DC)
- Appointment by Chief Justice, but nominated by chief judge in district, and if first nominee rejected, then 2 more made and Chief Justice must choose amongst them
- Limits appointment to one 7 year term (note: typo in bill)
- Unless sitting en banc, no FISC judge may hear application that has already been denied by another FISC judge
Appointment to FISA Court of Review: Chief Justice appoints judges from district or circuit courts, but must have approval of at least 5 associate justices
Report on Diversity and Representation of FISC: Committee on Intercircuit Assignment of the Judicial Conference of the US will carry out study and issue report w/in 1 year of enactment
Blumenthal (16)
: FISA Court Reform Act of 2013
Office of the Special Advocate in executive branch:
- Special Advocate appointed for renewable 5 year term(s) by presiding judge of FISA Court of Review from list of 5+ candidates provided by PCLOB – if vacant, Acting Special Advocate appointed from Office or PCLOB's list
- Duties of Special Advocate:
- Review all FISC applications and orders and documents/materials relevant to decision
- Participate in FISC proceedings IF appointed by FISC, or if request to participate made of and granted by FISC
- May move for FISC to reconsider decision or appeal
- Protects individuals' rights by supporting legal interpretations that minimize scope of surveillance and extent of data collection and retention
- May get help of competent outside counsel, and move to permit participation of amicus curiae (incl. in oral argument – rules for participation w/in 180 days of enactment)
- May petition for disclosure
- Standard of Review by FISA Court of Review: de novo re: issues of law; clearly erroneous re: determination of facts
Disclosures of Opinions: AG must disclose all FISC decisions w/significant construction or interpretation of law issued after July 10, 2003, and all FISC decisions appealed by Special Advocate, including FISCR decisions. Disclosures can include (un)redacted order, summary of order, or (un)redacted application/brief/other materials, and must include public document sufficient to:
- Identify each legal question addressed
- Generally describe context of the issues
- Describe construction/interpretation of statute, constitutional provision, or other legal authority
- Indicate whether decision departs from prior decision
Special Advocate Report to Congress: Annual report on implementation of Act, detailing activities of Office, assessment of Act's effectiveness, and proposals of new legislation on FISC
Schiff (10)
: Presidential Appointment of FISA Court Judges Act
Designation of FISC Judges: Appointment of FISC judges by the "President, by and with the advice and consent of the Senate"
Cohen (12)
: FISA Court Accountability Act
Designation of FISC Judges: 11 judges
- 3 appointed by Chief Justice;
- 2 by each of the party leaders chambers of Congress
Limitations on FISC
- No judge may hear application already denied by another FISC judge
- En banc authorities only exercised when agreed to by 60%+ of judges sitting en banc
- Decisions in favor of Gov't must be unanimous
Disclosures to Congress: Requires AG to submit all FISC opinions to Congress; and an unclassified summary of each decision, order, or opinion
Lynch (2)
: Privacy Advocate General Act of 2013
Creates Office of the Privacy Advocate General (PAG):
- Independent office in Exec. Branch
- PAG appointed jointly by Chief Justice and senior Assoc. Justice appointed by President of diff. party from that of Pres. who appointed Chief Justice
- 7 year term
- Duties:
- Serves as opposing counsel to Fed. Gov't for all applications before FISC, incl. for appeals and cert. petitions to USC
- May request public disclosure of order, opinion, decision
Surveillance Authority Pending Gov't Appeal of Denial of FISC Application: FISC Judge may authorize emergency electronic or physical surveillance, or installation of a pen register or trap and trace device, pending gov't appeal of denial of application if there is:
- Reasonable argument that surveillance is permissible; and
- Exceptional circumstances and compelling evidence of necessity of surveillance
- If appeal denied, information gathered must be destroyed, and cannot be used in any judicial, agency, regulatory, or legislative proceeding, or used or disclosed by federal employees w/out individual's consent
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.