from the what-did-we-do-now? dept
Over at Just Security, they're now discussing that issue, pointing out that things might be a bit messier than everyone expected. That's because, yes, USA Freedom modifies the text of existing law, but the existing law changed at midnight Sunday night, and the "changed" text might no longer make any sense:
And that's not all. As the writeup by Megan Graham notes, this is true of many other sections as well. Basically, USA Freedom was designed to work relative to parts of existing law, but that existing law changed, and now everything's broken and the law, in places, makes no sense at all.
Practically speaking, things aren’t so simple. For example, the US Code section that up until Monday morning had contained the business records provision was 50 USC § 1861. As of 12:00am on June 1, however, any parts of the US Code that had expired reverted back to how they read on October 25, 2001, per the terms of the 2005 and subsequent reauthorizations. But rather than containing the business records provision, the old version of Section 1861 contained definitions for terms (and Section 1862 was the FISA business records provision). This raises the second question of how the US Code will read now that the unaltered version of the USA Freedom Act is law.
The answer here is much less clear and is where the US Code is about to get a little weird. Section 601(b) of the USA Freedom Act, for example, amends Section 502(c) of FISA. But Congress' instructions for modifying that part of the US Code creates a number of blank spots in the text and several nonsequiturs. For example, Section 601(b) says that the word "and" should be struck in subparagraph (A), to insert a semicolon in subparagraph (B), and to add subparagraphs (C) through (E), but neither (A) nor (B) existed in the pre-Patriot Act text. As a result, here’s how it now reads:Section 1862(c)(1)(A) and (B) are blank because they didn’t exist in the pre-Patriot Act version of the law. USA Freedom simply willed them into existence by calling for edits to them and by creating subparagraphs (C) through (E), which had to be preceded by something. And the rest of Section 1862(c)(1)? The FISA provision that explains the requirements for a court order after a successful application by the government to collect a company’s business records is now nonsensically melded with reporting requirements.
1862. Access to certain business records for foreign intelligence and international terrorism investigations
(c) Ex parte judicial order of approval
(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the requirements of this section.
(C) the total number of applications made for orders approving requests for the production of tangible things under section 501 in which the specific selection term does not specifically identify an individual, account, or personal device;
(D) the total number of orders described in subparagraph (C) either granted, modified, or denied; and
(E) with respect to orders described in subparagraph (D) that have been granted or modified, whether the court established under section 103 has directed additional, particularized minimization procedures beyond those adopted pursuant to section 501(g).
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.
As Graham notes, most people are probably assuming that we can now pretend that USA Freedom is meant to amend not the law as it stood on Tuesday when USA Freedom passed, but the law as it stood two days earlier. And that's a reasonable assumption. But it may not be legally binding. And, thus, there's a half-decent chance that someone could actually challenge the law based on how it actually is supposed to be, rather than letting everyone get away with pretending that, before making the USA Freedom Act law, we first put the three surveillance provisions back in place.