By Kyle C. Barry
AFJ Legislative Counsel
Last week, the House passed the first surveillance reform legislation since Edward Snowden’s disclosures about several NSA surveillance programs, including the bulk collection of Americans’ phone call data. Unfortunately, the legislation does not sufficiently address the FISA Court—the secret court that issues orders authorizing government surveillance—and omits key procedural safeguards designed to ensure that the court considers privacy interests before granting government requests to conduct surveillance.
The House passed a compromise version of the USA Freedom Act that is substantially diluted from what Rep. Jim Sensenbrenner, R-Wis., and Senator Patrick Leahy, D-Vt., originally introduced. Many privacy advocates, along with major media outlets like The New York Times, have criticized the bill’s failure to go far enough in its substantive reforms of what sort of information the NSA is allowed to obtain, particularly with respect to the bulk collection of telephone records . But another problem has drawn less attention: As passed, the bill leaves intact the ex parte nature of the FISA Court and, with it, the government’s tremendous advantage in obtaining surveillance orders.
As AFJ argued in its report, Justice in the Surveillance State, establishing an adversarial process in the FISA Court is an essential part of any surveillance reform. Currently, the FISA Court only hears from the government, making it an aberration in a federal judiciary that generally relies on the presentation of competing views to adjudicate questions of law. It is true that certain aspects of criminal investigations, like search warrants and wiretaps, are approved through ex parte proceedings, but the scope of FISA Court decisionmaking goes much further. While search warrants turn on narrow questions of fact—i.e., has the investigating officer demonstrated probable cause—the FISA Court’s decisions include sometimes controversial interpretations of statutory and constitutional law, which are the very sort of questions for which the adversarial process is most critical. Read more