What’s Next

Based on the call detail records program’s impact on the privacy of millions of Americans and its lack of security value, it’s clearly time for Congress to end the authority for it. Congress should also enact additional reforms to safeguard Americans’ privacy rights before considering extending the business records collection components of Section 215 other than the call detail records program.

First, Congress must fully ensure that secret law cannot be developed at the FISA Court and kept hidden from the public. The USA FREEDOM Act set an effective standard for requiring disclosure of FISA Court rulings that shape the law in a novel or significant way. But the law should also guarantee prompt public disclosure. The public needs to have reason to be confident that any major development or change to the law based on a court’s rulings behind closed doors is being revealed within a short, set timeframe.

Additionally, Congress needs to strengthen the “special advocate” role where outside lawyers are brought into important FISA Court proceedings as amici curiae—attorneys that act as “friends of the court” by providing legal insights without serving as an actual party in the case—to advance legal arguments to protect privacy rights. Unlike in other courts, there is otherwise nobody to argue against the government’s position, and often no notice of surveillance after the fact to those affected. The presence of a “special advocate” is a safeguard that helps prevent one-sided deliberations like those that enabled bulk collection for nearly a decade. So far, we’ve seen strong contributions from these amici to enhancing consideration of privacy and civil liberties during FISA Court deliberations. Legislative reforms would further strengthen and define their role. Such reforms should:

include a clear mandate for the special advocate to promote privacy and civil liberties;

include a measure to automatically trigger amici’s participation when the government is seeking surveillance orders that do not contain a particular target;

rescind FISA Court judges’ power to block amici from participating in designated situations;

grant amici access to the FISA Court’s full docket; and

grant amici the authority to appeal rulings to the FISA Court of Review.

Congress should also require that defendants receive notice when FISA surveillance is used in investigations of them. The Constitution requires that evidence that could aid a defendant—either as direct evidence or in challenging the legitimacy of an investigator’s conduct—be provided to them. Yet the government claims that it does not have a legal or constitutional obligation to disclose its evidence when it is derived from surveillance conducted pursuant to Section 215. This has stymied legitimate legal challenges to this type of surveillance. Any reauthorization of a narrowed Section 215 must include a clear requirement to protect defendants’ constitutional rights and facilitate their ability to challenge the legitimacy of surveillance programs used against them.

Finally, Congress should not reauthorize the remaining portions of Section 215 (separate from the call detail records program) or other expiring provisions of the PATRIOT Act unless lawmakers and other key oversight entities like the Privacy and Civil Liberties Oversight Board receive indisputable evidence that the call detail records program has not been secretly replaced by a similar mass collection system justified under another, as-yet-undisclosed legal authority.

However, establishing something akin to the call detail records program based on another statute would require a novel or significant interpretation of law by the FISA Court, and thus would trigger the public disclosure requirement. And given how clearly Congress spoke on this issue in passing the limits contained in the USA FREEDOM Act, any reasonable lawyer would conclude that, based on Youngstown, Congress has set clear bounds on the executive’s power to monitor telephone metadata, and as a result the executive’s power to recreate the Terrorist Surveillance Program has been cut off (former Attorney General Jeff Sessions conceded this point while answering a question from Senator Patrick Leahy (D-VT) during his confirmation hearing).

In light of all these factors, a shift of mass metadata surveillance to another hidden authority seems unlikely. But given the executive branch’s record of engaging in and concealing mass surveillance through strained interpretations of the law, it is essential for Congress to adopt a “trust, but verify” attitude before reauthorizing a narrowed Section 215 and permitting future surveillance pursuant to this law with its troublesome history.