Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post‑9/​11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.

Immunity

One thing to get out of the way first: Most of the press coverage I’ve seen of Feingold’s bill to date leads with the provision that would repeal the retroactive legal immunity Congress granted to telecommunications firms that participated in the National Security Agency’s program of warrantless wiretaps. During last year’s debate over reforms to the Foreign Intelligence Surveillance Act, most reporters seem to have decided that because the immunity controversy was the sexiest or the easiest aspect of the FISA amendments to explain, it was also the most important. Which is pretty much backwards. Granting retroactive immunity was a bad idea, but the repeal clause in the JUSTICE Act is (a) not terribly likely to pass, and (b) ultimately trivial compared with the need to place reasonable limits on powers that, without strong oversight, could permit large-scale spying on Americans. In a paradoxically somewhat ominous development, a separate telecom immunity bill was introduced Monday with the co-sponsorship of both Feingold and Leahy, along with Chris Dodd and Jeff Merkley. I say “ominously” because it can be read as indicating a consensus among Democratic senators to focus on the headline-friendly immunity issue at the expense of the more important safeguards on future surveillance. More hopefully, breaking it out could be a “we tried” move designed to win plaudits from allies and draw fire from enemies without letting the measure be a poison pill in the broader reform bill, where the stuff that matters ends up. Time will tell, obviously.

Lone Wolves

That aside, let’s start with the three expiring provisions, which I discussed briefly last week. The so-called “lone wolf” provision allows the special investigative powers of FISA, which normally require a target to be an “agent of a foreign power,” to be used on non-citizens who lack any apparent affiliation to a terrorist group, but nevertheless are thought to be engaged in “international terrorism or activities in preparation therefor.” The Leahy bill would renew it; Feingold’s JUSTICE Act does not. Lone wolf authority has never been invoked, suggesting that, as yet, it has been neither subject to abuse nor particularly urgently needed. But since the statutory definition of a “lone wolf” requires evidence of criminal conduct—engagement in “international terrorism”—any case in which it would apply should also be a case where investigators would be able to obtain an ordinary Title III criminal warrant.

That seems like the more appropriate approach for some of the cases that the Justice Department apparently thinks would be covered, such as a person who “self-radicalizes” by reading terrorist Web sites. If that is the extent of the “international” connection required, the provision uncomfortably blurs the line between domestic national security investigations, for which the Fourth Amendment demands a traditional warrant, and foreign intel investigations where an array of special considerations closely linked to the actual involvement of “foreign powers” justify greater leeway for investigators.

Roving Taps

Both bills would renew FISA’s “roving wiretap” authority, which permits investigators to eavesdrop on targets without specifying a particular phone line or e‑mail account in advance, in order to deal with suspects who may rapidly change communications venues in an attempt to thwart surveillance. Under FISA, however, owing to the difficulties inherent in foreign intel surveillance, the target of a warrant can be merely described rather than directly identified. This led to worries about “John Doe” roving warrants that would contain neither the target’s name nor any particular location. Congress added some extra language in 2006, requiring the target to be “specifically described”—that is, if not a name, a precise enough description to single out a unique individual—in roving warrants, and also required after-the-fact notice of the court when surveillance “roved” to a new facility.

Given the secrecy inherent in FISA proceedings, it’s impossible to know precisely how investigators and the court have interpreted this new language, or whether it truly provides an adequate safeguard. Where the Leahy bill would renew roving as currently written, JUSTICE adds the requirement that roving warrants contain the “identity” of the target, and codifies the principle that roving taps should only be activated during periods when it is reasonable to believe the target is “proximate to” the facility. The latter language, it should be noted, may actually have the practical effect of loosening restrictions on roving taps. Even in roving cases, FISA’s minimization provisions require an evidentiary “nexus” between the target and a facility that “is being used, or about to be used” by the target. The “proximity” standard pulled across from the Title III criminal context may actually be more permissive.

215 “Tangible Thing” Orders

Last of the provisions expiring this year is authority under section 215 of FISA, to compel the production of “any tangible thing” from just about anyone, though it’s primarily intended to cover various kinds of business records. Under the original PATRIOT Act, this required only a certification to the secret FISA court that the records or objects sought were “relevant” to an investigation. In 2006, Congress added a requirement that applications for 215 orders include some factual showing of relevance, but many kinds of requests were deemed presumptively relevant.

Both bills tighten this up, with some minor differences. All now limit 215 orders to records pertaining to suspected agents of foreign powers, the activities of those agents, or persons known to be in direct contact with or otherwise linked to those agents. This preempts expanding friend-of-a-friend fishing expeditions where the target’s father’s brother’s nephew’s cousin’s former roommate’s colonoscopy results are potentially “relevant.” Feingold adds a “least intrusive means” requirement when the records pertain to “activities”—since in that case the presumption is that the identities of the specific targets are unknown, and the order seeks to discover them. Feingold’s bill also permits records to pertain to a “subject of an ongoing and authorized national security investigation” other than an agent of a foreign power, which would appear to broaden the scope of accessible records.

Neither bill responds to the concern raised by civil libertarians that “contact” with a suspect is too vaguely defined. Again, since we’re necessarily ignorant about precisely how courts have construed the “relevance” standard, it wouldn’t hurt to make explicit that when the records sought pertain to non-targets in “contact” with a target, there be some showing that establishes a nexus between the nature of the contact and the investigatory purpose to obtain foreign intelligence information.

National Security Letters

That covers the expiring provisions. Fortunately, both bills recognize that it would be fruitless to tighten restrictions on 215 orders without doing something to rein in the vastly more frequently used National Security Letters. An Inspector General audit found that in at least one instance, the FBI improperly used NSLs to obtain information they had previously sought under a 215 order, and which the FISA court had denied on the grounds that the investigation raised First Amendment concerns.

More generally, it’s believed that, especially after Congress imposed some restrictions on the scope of 215 orders, investigators have preferred to instead rely on relatively unfettered NSLs whenever possible. Almost 50,000 were issued in 2006 alone, and the majority were used to obtain information about U.S. persons. These are slightly more restricted in their application, allowing acquisition of records from telecoms and “financial institutions,” but PATRIOT removed many limitations on the types of records that could be sought from those institutions, and post-PATRIOT reforms vastly expanded the definition of “financial institution” to cover many businesses we wouldn’t intuitively describe that way: pawnshops, casinos, travel agencies, businesses with lots of cash transactions, and probably your nephew’s piggy bank. Crucially, they are issued by investigative agencies—mainly the FBI—without court approval. Inspector General audits have discovered rampant misuse of this tool.

Both bills contain language parallel to their 215 sections requiring a tighter link between the records sought and the subject of the investigation. Significantly, the JUSTICE Act also restores pre-PATRIOT limitations on the kinds of records that can be sought, limiting NSLs to relatively basic information about clients or subscribers and requiring a court order for more sensitive data. The Leahy bill would establish a new four-year sunset for expanded NSL authorities; Feingold’s does not, presumably because it already substantially rolls back PATRIOT’s expansion of those authorities. Greg Nojeim of the Center for Democracy and Technology argues that NSL reform is the most important part of the PATRIOT reauthorization debate.

Gag Orders

NSLs and 215 orders are both routinely accompanied by gag orders, which several courts have found to raise significant First Amendment problems. Both bills allow recipients of NSLs or 215 orders to challenge both the orders and any accompanying gag, and shift the burden of proof from the recipient to the government to show that the gag—now limited in duration, but renewable—is necessary to avert harm to an investigation or to national security. Previously recipients seeking to challenge a gag were in the unenviable position of proving that there was “no reason” to think disclosure could have any adverse consequence. JUSTICE, however, goes further in detailing the specific kinds of harms that may justify imposition of a gag, and requiring a showing a direct link between the alleged harm and the particular investigation, while the Leahy bill permits more generalized and vague allegations of harm.

Also covered under both bills are pen registers and trap-and-trace devices, typically bundled together under the rubric of “pen/​trap” surveillance, which involves acquiring communications metadata—the numbers and times of incoming and outgoing phone calls, e‑mail addresses, Web URLs visited, and the like—under a lower standard than would be required for a full-blown search or wiretap. Again echoing the language of their 215 and NSL provisions, both bills put some teeth into the “relevance” requirement by limiting whose metadata can be obtained. JUSTICE, however, also imposes these limits on criminal pen/​trap orders for the first time, closing a potential loophole that would remain if only FISA pen/​trap orders were covered.

Reporting and Audits

Finally, the Leahy and Feingold bills both include an array of enhanced reporting requirements, mandating somewhat more detailed public disclosure of how often different investigative tools are used. Leahy’s bill also requires the Inspector General of the Department of Justice to conduct a series of annual audits, with reports to Congress, on the use of “tangible things” orders, pen/​trap surveillance, and NSLs.

JUSTICE-Only Reforms: FISA Amendments Act

That covers the terrain in which the two bills overlap. But arguably the most important difference between the Leahy and Feingold bills—and along with more stringent NSL reform, perhaps the most important component of the JUSTICE Act that should be ported into whatever bill is finally reported out of Judiciary—concerns the changes made to the ill-advised FISA Amendments Act passed last year.That law gave the Attorney General broad power to authorize wiretaps aimed at communications between the U.S. and other countries, with only anemic court oversight.

The JUSTICE Act provides stronger barriers to “reverse targeting,” in which an authorization nominally directed at a party abroad is granted for the purpose of eavesdropping on a particular U.S. person’s foreign communications. The new language clarifies that surveillance is impermissibly “reverse targeted” when it is a “significant purpose”—as opposed to “the purpose”—of the surveillance to listen in on the American party. When one side of a communication is in the U.S., the bill triggers additional requirements that either the particular communication be relevant to terrorism (not merely “foreign intelligence,” which is far broader) or that the foreign side of the communication is affiliate with a terrorist group.

Perhaps most important of all, JUSTICE bars “bulk collection”—massive, vacuum cleaner acquisition of international communications—by requiring that at least one party to any communication “acquired” be an actual individual target, though not necessarily a named or known target. While this is plainly intended to prevent the kind of Orwellian computer-filtered fishing expeditions civil libertarians have worried might be authorized, it’s important to note that there’s a potentially huge loophole here, involving ambiguity about the point at which a communication is technically “acquired.” It’s too complicated to cover in detail here, but I’ve written about it in my previous life as a journalist. If, as the government has argued in the past, acquisition only occurs when an intercepted communication is “fixed in a human readable format,” the new language would bar bulk recording in an intelligible form, but not necessarily bar bulk collection for computer filtering. Again, the issues here are fairly complex, and I’m working on a paper that takes them up in greater detail.

Other JUSTICE-Only Reforms

There are a hodgepodge of other changes in the ambitious JUSTICE Act, and I’ll just mention very briefly some of the most important ones. The bill puts some stricter limits on the granting of so-called “Sneak-and-Peek” warrants, which allow for disclosure of a search to its target to be delayed for long periods. As David Rittgers observed yesterday, these were sold as necessary for terror investigations, but as with some other PATRIOT powers, have ended up being invoked overwhelmingly in ordinary criminal cases. It tweaks the language of a PATRIOT provision designed to allow monitoring of computer hackers to prevent abuse. It narrows the definition of the crime of “material support” for terrorism to make clear that it covers knowing support for criminal activities—as opposed to, say, humanitarian aid. And it ensures that PATRIOT’s definition of “domestic terrorism” can’t be applied to (legitimately illegal but non-terrorist) civil disobedience by political groups.

Either bill would do a great deal to halt the erosion of civil liberties safeguards we’ve seen over the past eight years, and in general these are reforms well crafted to provide oversight and checks against abuse without depriving investigators of tools vital to legitimate national security investigations. The most important items here, however, are the more stringent limitations on National Security letters embodied in the JUSTICE Act, and that legislation’s common-sense limits on the frankly astonishing discretion to authorize surveillance granted the executive branch under the FISA Amendments Act. How those provisions fare will tell us how serious Congress is about protecting civil liberties.