What other parts of FISA and the PATRIOT Act need reform?

While the three mentioned above are the only ones that will actually expire if Congress doesn’t act, a new law extending these provisions could also take on a significant range of additional reforms to FISA. Many problems we’ve seen in PATRIOT Act surveillance ultimately result from broader, systemic issues with how FISA as a whole operates.

First, Congress should provide stronger oversight and more transparency for the activities of the FISA Court. In 2015, in order to promote privacy rights, the USA FREEDOM Act created an amicus curiae, or “friend of the court,” role for an outside litigator to provide the court with added expertise, specifically in cases involving novel questions of law. This was a good start, but Congress should expand this role so the amicus has access to more materials and a greater range of proceedings.

Second, Congress should reform FISA so that it properly protects location privacy. In 2018, the Supreme Court ruled that the Fourth Amendment requires law enforcement to obtain a warrant for electronic location tracking—specifically for cellphone location tracking—but left many details ambiguous. Many provisions of FISA, notably Section 215, could allow the government to demand location records that reveal Americans’ most sensitive activities and interactions. Congress should include legislative language requiring a warrant for this type of location surveillance.

Third, Congress should require that the government notify individuals when they are targeted by FISA surveillance. When an individual is subject to a traditional criminal wiretap, the law requires that, after the investigation is over, the government notify the individual. But most of the invasive types of surveillance the government conducts under FISA do not require this type of notification. This leaves individuals unable to challenge the government’s conduct in court if they believe they were improperly targeted for surveillance or that the surveillance was conducted improperly.

These are among the most important reforms that new legislation should make, but they are far from the only ones. Privacy advocates, including POGO, have highlighted a range of reforms Congress should act on, including systemic changes to prevent surveillance abuse. And in addition to long-standing surveillance concerns, the recent Justice Department Inspector General report has shone a light on other problems Congress should turn its attention to.