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A nation must think before it acts.
Center for Ethics and the Rule of Law at the University of Pennsylvania
The December 2019 public release of a redacted version of the Justice Department Inspector General’s Review of Four FISA Applications and Other Aspects of the Crossfire Hurricane Investigation (the “Horowitz Report”) has triggered an avalanche of public commentary, multiple appearances before Congress by Inspector General Horowitz, the unprecedented public rebuking of the FBI by the Foreign Intelligence Surveillance Court (FISC), and promises of internal reform by a chastised FBI. Now, the first legislation aimed at “reforming” the Foreign Intelligence Surveillance Act (FISA), ostensibly offered as a response to the Horowitz Report but timed to capitalize on the upcoming debate over the renewal of three FISA surveillance authorities, has been introduced in Congress.
The Safeguarding Americans’ Private Records Act of 2020 is a bill (the “Safeguarding Bill”) introduced in the Senate by Ron Wyden and Steve Daines, a bipartisan partnership that reflects the solecistic coalition of civil liberties advocates and libertarian conservatives who agree on almost nothing except the perfidy of FISA. According to a press release from Wyden’s office, the Safeguarding Bill: (1) reforms Section 215 of the Patriot Act; (2) reforms the FISA process and addresses the problems identified by the Inspector General; (3) expands oversight and transparency; and (4) closes “secret law” loopholes.
This report is meant to inform ongoing debates over the future of FISA. It accomplishes this by separately analyzing several different aspects of the proposed bill. First, it examines the proposal to terminate Section 215 of the Patriot Act—a provision that enables the government to obtain certain call detail records (CDRs) from communications service providers. Next, the article examines other proposed changes to FISA that are not related to the findings and recommendations of the Horowitz Report. Finally, the article looks at proposed changes that were animated by the FBI Inspector General’s report. For the reasons discussed below, many of the proposed changes will not serve the corrective ends for which they were intended.