WASHINGTON, D.C. – U.S. Senator Rand Paul yesterday successfully filibustered attempts to move to an extension of the USA PATRIOT Act. During the filibuster, Sen. Paul highlighted the need for an open and robust debate and amendment process in order to achieve comprehensive surveillance reform on domestic spying. The amendments, Sen. Paul will offer to the USA PATRIOT Act extension, are outlined below.
BACKGROUND INFORMATION ON AMENDMENTS TO USA PATRIOT ACT EXTENSION
· Replace the PATRIOT Act extension with bipartisan comprehensive surveillance reform
o Replaces the extension of expiring FISA authorities with multiple surveillance reforms, based in part on legislation proposed by Sens. Wyden, Paul and others in the Intelligence Oversight and Surveillance Reform Act of 2013, as well as other crucial reforms:
§ Ends bulk collection of Americans’ records under Sec. 215;
§ Closes the Sec. 702 backdoor search loophole;
§ Creates a constitutional advocate to argue before the Foreign Intelligence Surveillance Court;
§ Gives Americans spied on by the government the standing to sue in court;
§ Ends “reverse targeting,” which the government uses to target the communication of an American without a warrant by targeting the non-US persons with whom they speak;
§ Allows companies to disclose the numbers of records they are compelled to provide to the government;
§ Prohibits the granting of liability immunity to companies to break user agreements, thus preventing the government from hiding the fact that it demands access to user data through third party records;
§ Establishes that companies subjected to a government order to provide customer records may appeal that order beyond the FISA courts into federal appeals court.
· Prohibit mandates on companies that they alter their products to enable government surveillance
o Prohibits the government from issuing mandates to force the intentional alteration of security features.
o Prevents the government from compelling companies to deliberately weaken the encryption security of their products and services so that the government can directly access communications and data.
· End warrantless backdoor searches of Americans’ communications under Sec. 702
o Closes the “backdoor search” loophole that enables warrantless searches for information on Americans contained in phone records and emails collected under Sec. 702 of FISA.
· Require court approval of National Security Letters (NSLs)
o In practice, NSLs have become warrants written by law enforcement without prior court review and approval, granting them almost unfettered access to individual email and phone communication data, as well as consumer information such as bank and credit records. Those subjected to NSLs must also obey a “gag” order that prevents them from disclosing the government’s demands—or the fact that the government’s demands even exist.
o This amendment would require that the government obtain approvals from a court prior to issuing a NSL to a private entity, thus forcing them to demonstrate a clear need for the information as part of an investigation.
· Warrantless spying cannot be used against Americans in non-terror criminal cases
o Prohibits the government from using information it obtains about an American during warrantless surveillance to pursue criminal charges not related to terrorism or espionage under FISA.
o In 2013, it was revealed that the Drug Enforcement Agency was funneling information it was obtaining through intelligence authorities to law enforcement across the country as a basis for them to launch criminal investigations—it was even disclosed that agents were trained to hide the origin of the evidence.
· Protect the privacy of Americans’ records held by third parties
o Establishes a clear principle consistent with the Fourth Amendment that, as it relates to government collection, an individual’s records given to a third party for a specific business purpose are equally secure in their person as those that remain in their possession, unless that third party informs the individual that it intends to share the record.
o This affirms that the government cannot circumvent warrant requirements by taking Americans’ records from third parties, and protects constitutional rights during engagement in regular communication and commerce.
· Limit the use of Sec. 213 authority to terrorism and espionage investigations
o Ends the practice of using the exceptional “sneak and peek” authority under Sec. 213 (wherein the government executes a search warrant without notifying the subject of the warrant) for non-terrorism investigations like drug crimes.
o Court reports show that more than 99% of searches under Sec. 213 since 2011 have been for drug cases and less than one percent were actually related to terrorism.
· Prohibit the warrantless surveillance of Americans under Executive Order (E.O.) 12333
o E.O. 12333 provides another authority under which the government may collect communications of Americans, yet it has not received the same scrutiny from Congress as provisions added by the USA PATRIOT Act or FISA Amendments Act.
o Establishes a simple prohibition on warrantless targeting of Americans using authorities based in E.O. 12333, requiring the government to obtain a warrant based upon probable cause.
· Clarify the ability of agency and contractor whistleblowers to make constitutional complaints
o Clarifies that whistleblowers (agency and contractor) with knowledge of FISA programs may lodge complaints with GAO, PCLOB, congressional intelligence committees, or through internal channels. Prohibits professional retaliation against whistleblowers.
o Requires any GAO report on a whistleblower’s surveillance complaint be made available to all members of Congress.
· Protect privacy of Americans’ financial and bank records by limiting Suspicious Activity Reports
o Establishes that no financial institution shall be compelled to produce a financial record about a without a court finding that warrant could be issued, thus obligating the government to demonstrate there is a compelling reason to request the information.