What About FISA "Renewal"?

Or FISA "Reauthorization", if you prefer.

A surprising number of people appear to think that FISA--the Foreign Intelligence Surveillance Act--is about to expire unless Congress "renews" or "reauthorizes" it. In fact, the USA Freedom Reauthorization Act of 2020 is concerned with the Patriot Act rather than FISA itself. FISA itself and its regime, including the FISC, will remain in effect no matter the outcome of the current dispute.

What the current FISA controversy is really all about is extending three additional "authorities" by which the Patriot Act expanded FISA powers in the context of the Global War on Terror. In what follows I'll be borrowing from FISA Renewal Controversy: The Suddenly Very Conspicuous Foreign Intelligence Surveillance Act, by George Croner. Here's Croner's bio:

George W. Croner, a Senior Fellow in the Program on National Security at the Foreign Policy Research Institute, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

So, the three authorities under consideration for 'renewal' or 'reauthorization' are these:

• (1) the “business records” provision; 
• (2) the “roving wiretap” provision; and 
• (3) the “lone wolf” amendment to the FISA definition of “agent of a foreign power”.

The 'roving wiretap' provision and the 'lone wolf' provision are, in my understanding, uncontroversial.

Here's how Croner describes the 'roving wiretap' provision. I can personally attest to the fact that 'roving wiretaps' were very problematic in pre Patriot Act days, simply because FISA was written long before wireless technology was a thing:

Another surveillance authority furnished by the USA Patriot Act, Section 206 amended FISA to permit multipoint, or “roving,” wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. It is often colloquially described as allowing FISA wiretaps to target “persons” rather than “places.”[16] As Brad Wiegmann, a deputy assistant attorney general in the Justice Department’s National Security Division, testified at the September 2019 House Judiciary Committee hearing, FISA’s “roving wiretap” provision allows the government to respond quickly to targets trying to thwart electronic surveillance by, for example, by repeatedly switching their cell phones.

With regard to the 'lone wolf' provision, please note that this applies specifically to non-US persons or non-USPERs--not US citzens or legal resident aliens. As he points out, this provision arose out of the case of Zacarias Moussaoui. The FBI's Minneapolis Field Office arrested Moussaoui on August 16, 2001, on immigration charges after coming to suspect that his flight training was related to some planned terrorist act. However, their requests under FISA to search his laptop and other belongings were rejected by FBIHQ. The argument is made that had the search been allowed on a timely basis the 9/11 attacks might have been thwarted by a higher level of alert for hijackers. Croner describes this provision:

Commonly referred to as FISA’s “lone wolf” provision, Section 6001(a) ... simplified the evidentiary standard used to determine whether an individual, other than a U.S. person (as defined in FISA), who engages in international terrorism may be the target of a FISA court order. It does not modify other standards contained in FISA that bear upon the secondary question of whether electronic surveillance or a physical search of the target of a court order is justified in a specific situation. 

The historical impetus for the “lone wolf” provision involved Zacarias Moussaoui, alleged at one time to be the 20th hijacker in the September 11 attacks. During the examination of the events leading up to the attacks, it was reported that the investigation regarding Moussaoui’s involvement was hampered by limitations in FISA authorities. ... Congress responded in IRTPA by providing that persons, other than U.S. persons, engaged in international terrorism are presumptively considered to be agents of a foreign power.[18]

In other words, where FISA requires probable cause that a person engaged in international terrorism is an agent of a foreign power, this provision allows the FISC to consider that any non-USPER engaged in an act of international terrorism is, in fact, an agent of a foreign power.

Practically speaking, a congressional decision to allow the “lone wolf” feature of FISA to lapse means that, in future cases involving non-U.S. persons suspected of involvement in international terrorism, the government will be required to use the “traditional” Title I probable cause standard and show the “target” is acting on behalf of a particular entity (i.e., a foreign power as defined in FISA) engaged in international terrorism.

Probable cause connecting 'lone wolf' terrorists to a particular entity is not always that easy to come by, and that's what this provision was designed to remedy.

That leaves us with the 'business record' provision, and that's where the real controversy is.

Here's Croner:

Section 215 of the USA Patriot Act broadened the authority of federal officials to pursue materials in connection with

(1) a foreign intelligence investigation that is not concerning a U.S. Person,

(2) an investigation to protect against international terrorism, or

(3) an investigation to protect against clandestine intelligence activities.[6]

As currently written, the provision authorizes the FISC to order third parties to produce specific “tangible things (including books, records, papers, documents, and other items)” where the government (almost always the FBI in the case of this particular FISA authority) satisfies these statutory prerequisites.

I bolded the third item in the list because that's by far the most likely to be abused against an USPER. Here's how that would work. I'm sure you'll recognize the phrase I've repeated so many times: “specific and articulable facts giving reason to believe." That's the probable cause standard. The 'business records' provision modifies the probable cause standard, substituting a far easier standard. Moreover, USPERs fall under this lower standard. Further, you'll recognize the whole business about "an agent of a foreign power"--which is what Page, Papadopoulos, Flynn, and Manafort were all accused of being--even though they were never convicted of that.

In this quote I've modified Croner's language to delete his summary of Section 215 and substitute the actual wording of Section 215:

Prior to the enactment of Section 215, the FISA business records authority required that an applicant have “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” Section 215 generously modified this typically FISA-like standard to simply require a “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to protect against ... clandestine intelligence activities ...”[9] Moreover, Section 215 further relaxes the standard by providing that the requested tangible things are presumptively relevant if they pertain to an authorized foreign intelligence investigation into ... clandestine intelligence activities and the requested business records or tangible things pertain to “a foreign power or an agent of a foreign power,” to “the activities of a suspected agent of a foreign power who is the subject of an authorized investigation,” or “an individual in contact with, or known to, a suspected agent of a foreign power.”

In other words, if  you're an investigator and you can come with a statement of facts that sounds reasonable and is arguably "relevant to" what you're investigating, well, the world's your oyster!

This 'business records' provision might not on its face sound terribly controversial either. But when Ed Snowden revealed that it was being used "to approve government applications ordering communications service providers to furnish records of telephone metadata in bulk", Congress sat up and took notice:

Congress intervened in 2015 and passed the USA Freedom Act, which eliminated bulk collection of metadata in favor of a more limited ability to pursue “contact-chain” analysis through acquisition of “call detail records” (CDRs) from the repositories of telecommunications providers.

What does this mean in practical terms? Included in this "USA Freedom Act" was the so-called "two hop" rule, which of course was what the Carter Page FISA was really all about. (This provision was not in effect during my work days.)

Supposing that this 'business records' provision were not renewed--what would happen? What would happen would be that the original text of FISA would return into effect. Here's how that would look:

In the event that Congress fails to reauthorize the current form ..., the ... authority will revert to the status quo as it existed on October 25, 2001 (immediately prior to passage of the USA Patriot Act). The effect of this “sunset” would be to circumscribe the “business records” to its much narrower, pre-October 2001 scope. In practical terms, this would restrict the FISC to authorizing production of records only from that limited group of entities (e.g., common carriers, public accommodation facilities, storage facilities, or vehicle rental facilities) specified in the initial 1998 FISA amendment in marked contrast to the current statutory language, which imposes no limit on the type of entity holding the information. Further, the government previously was obliged to limit its requests to situations where the information sought directly concerned the investigative target while the current language supplies both a more relaxed production standard ["relevant to"] and imposes no mandate that the records actually pertain to a specified target.

So:

1) A more restricted list of entities from which 'business records' could be obtained, and

2) the information sought would need to be "directly concerned with" the investigative target, rather than merely "relevant to" the investigation.

Would this change make you happy? If I were a proponent of the FISA regime I would want some middle ground, I suppose. However, the bottom line to me is that the FISA regime itself--with it's "court" pre-approving executive actions--is what shields the intel agencies (read: FBI) from accountability. Non-renewal won't change that.

And, yes, I'll say it--I'm not impressed with Barr's position. In fairness, he may not be speaking his whole mind on this. He may simply be going for what's possible.