Surveillance Reform Package Ends Bulk Collection Of Phone Records; Creates Constitutional Advocate For Secret Court

(Washington, D.C.) – In order to restore the constitutional liberties that have been eroded by invasive surveillance and end secret interpretations of the law that vastly exceed the intent of Congress, a bipartisan group of lawmakers including Senators Ron Wyden (D-Ore.), Mark Udall (D-Colo.), Richard Blumenthal (D-Conn.) and Rand Paul (R-Ky.) have introduced legislation to reform domestic surveillance laws and the secret surveillance court.

The Intelligence Oversight and Surveillance Reform Act will prohibit bulk collection of Americans’ records, shield Americans from warrantless searches of their communications and install a constitutional advocate to argue significant cases before the secret Foreign Intelligence Surveillance court.

Blumenthal said, “Recent revelations about NSA overreach show the need for strong and effective oversight of government surveillance – oversight by a Constitutional Advocate to fight for Americans’ civil liberties before the FISA Courts. This reform, as well as the others in this legislative package, will ensure that the NSA and the FISA Courts respect constitutional rights. We can protect both national security and constitutional liberties by making sure the Courts hear both sides, as they do in every other judicial proceeding.”

“The overbroad surveillance activities that have come to light over the last few months have shown how wide the gap between upholding the constitutional liberties of American citizens and protecting national security has become,” Wyden said. “The effect can be felt not only by the significant erosion of civil liberties domestically, but in the reduced credibility of the American government abroad and the significant impact on American economic interests.  These reforms seek to close that gap and avoid the false choice of protecting security over the preservation of personal liberty.”

“There is growing, bipartisan sentiment in Colorado and across the country that the way the NSA and our intelligence agencies are balancing Americans’ privacy rights and our security is fundamentally out of whack. We need to end the NSA's collection of millions of innocent Americans' private phone records and focus on the real problem: terrorists and spies," Udall said. "These aren't vague or abstract threats to our liberty. These dragnet searches are happening right now. I am proud to lead this bipartisan push to protect Americans' privacy rights and ensure that our pursuit of security does not trample our constitutional liberties."

“Reforming the Foreign Intelligence Surveillance Act must restrict the Executive’s expansive powers to seize private records in secret and without probable cause,” said Paul. “I support reforms on the way to a full restoration of our Founders’ idea embodied in the Fourth Amendment.”

Recent revelations and declassified documents have shown the extent of the intelligence community’s bulk phone and email records collection programs and their effect on the constitutional liberties of law-abiding Americans. The bill prohibits the bulk collection of Americans’ records in any form, while still authorizing the government to obtain records of individuals suspected of involvement in terrorism or espionage. 

The legislation makes major reforms to the operation of the secret Foreign Intelligence Surveillance court (FISC), chief among them the creation of an independent advocate to argue against the government in significant FISC cases.  The FISC currently operates in secrecy and frequently makes judgments on important constitutional protections based solely on arguments made by the government. The Intelligence Oversight and Surveillance Reform Act will create a Constitutional Advocate to present an opposing view in cases where the FISC is called upon to interpret US surveillance laws or the Constitution.  It will also set up a process for making significant FISC decisions public, and thereby reduce the government’s reliance on a secret body of surveillance law. 

The legislation also amends the Foreign Intelligence Surveillance Act to prohibit intelligence agencies from using collection authorities aimed at foreigners to conduct warrantless searches for the phone calls and emails of individual Americans.  Currently, a gap in the law known as the “backdoor searches” loophole permits the government to make an end run around traditional constitutional warrant protections.  The bill will also prohibit the collecting of communications that are “about” a target rather than those to or from that target outside of terrorism contexts and will strengthen protections against targeting a foreigner in order to collect communications of Americans without a warrant – a process known as “reverse targeting.”

Noting the negative effect these secret surveillance programs and legal interpretations have had on American companies required to provide records to the intelligence community under these statutes, the bill gives those companies the ability to disclose more information about their cooperation with government surveillance activities.