BREAKING: House FISA Reform Bill Needs Strengthening By Adding Two Key Reforms from Lee-Leahy Bill

Dear Friends:

As you know, last evening the House passed a “compromise” USA Freedom Reauthorization Act, HR 6172.  While we applaud the useful reforms the bill contains, in two crucial respects the bill fails to achieve its purpose of protecting the privacy rights of ordinary Americans, not just politicians.  Fortunately, these shortcomings can be corrected by incorporating into the Committee bill two specific provisions of the Lee-Leahy bill (S.321) that was introduced in the Senate on Monday. 
 

• Protecting Americans’ 1st Amendment Rights:  The House bill mandates the appointment of an amicus only when the surveillance application presents “exceptional concerns” about an individual’s First Amendment rights. But that standard would exclude the appointment of amici in cases – such as surveillance of a religious leader or political activist—where the First Amendment risk is common or expected but nonetheless clear. Under this provision, the Foreign Intelligence Surveillance Court (FISC) could all too easily avoid an amicus because, in the judge’s view, the obvious First Amendment concerns raised by a particular application are no different in principle from First Amendment concerns raised by any other similar surveillance.
  • Section 202(a)(1) of Lee-Leahy would solve this problem by defining a broader category of situations in which an amicus would be appointed, including applications raising “significant concerns” about First Amendment rights. That standard would benefit ordinary Americans who are subject to surveillance based at least in significant part based on their First Amendment-protected activities. 
• Protecting Americans’ 4th Amendment Rights: The House bill also provides a special federal right to federal officials and candidates—the right to approval from the Attorney General before any surveillance application is filed. As to those targets, the obvious purpose of requiring Attorney General approval is to ensure that the agency has sufficient grounds to pursue such an investigation. But ordinary Americans should have their own protection from FBI overreach—one that is consistent with their Fourth Amendment right to a showing of probable cause before any warrant is issued.
  • Section 104 of Lee-Leahy provides that very protection for ordinary citizens: It requires a showing of probable cause to believe the target either:
    1. is an agent of a foreign power, or
    2. has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law.

We believe all Senators of both parties should insist (at a minimum) on the addition of these two provisions from the Lee-Leahy bill before voting or agreeing to vote in favor of the House bill. These provisions will ensure that the bill provides meaningful protection for the privacy rights of all Americans, not just the privileged few who serve in or campaign for federal office. 
 
PPSA is a nonpartisan organization of U.S. citizens who seek greater protection of our privacy and civil liberties. www.protectprivacynow.org

 
Contact:
Gene Schaerr
General Counsel
Email: gschaerr@protectprivacynow.org          
Phone: (202) 787-1060                                                   

Mark Davis
Director of Policy
Email: mdavis@protectprivacynow.org   
Phone: (202) 909-5824