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D. (U) Effects of the Impending Sunset

(U) Unless reauthorized, several provisions extended or amended by the USA Freedom
Act will expire, or “sunset,” on March 15, 2020.

(U) Most notably, NSA’s explicit statutory authority to obtain two-hop CDRs associated
with an approved specific selection term will expire. In addition, the explicit prohibition on
using the business records provision to collect records that are not based on a specific selection
term will expire. The resulting statute would not explicitly authorize the government to collect
business records beyond one degree of separation from the target, but it would not explicitly bar
it from doing so either.
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(U) A sunset would also significantly curtail the broader, “traditional” FISA business
records authority, which would revert to its pre-9/11 text. Before 9/11, the statute was limited to
“records” from common carriers, public accommodation facilities, storage facilities, and vehicle
rental facilities. Consequently, the government would no longer be authorized to seek broader
business records productions from other, non-enumerated entities.

(U) The evidentiary standard required to compel production of these records would also
become more stringent. Specifically, the standard would shift from a showing that the records
sought are “relevant to an authorized investigation”—the current standard—to requiring
“specific and articulable facts giving reason to believe that the person to whom the record
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pertains is a foreign power or agent of a foreign power.”
(U) Finally, the USA Freedom Act extended the sunsets of two other FISA provisions:
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the lone wolf and roving wiretap authorities. Without congressional action, these authorities
will also expire on March 15, 2020.
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applications described in section 1861(b)(2)(C) of this title made for orders approving requests for the production of
call detail records.”).
44 (U) 50 U.S.C. § 1862 (2000).
45 (U) 50 U.S.C. § 1861(b)(2)(A), (c)(1); 50 U.S.C. § 1862(b)(2)(B) (2000).
46 (U) Under the lone wolf authority, the government can obtain a FISA court order for electronic surveillance of a
non-US person upon a showing of probable cause that such person is engaged in international terrorism or activities
in preparation for international terrorism without having to show that the non-US person is doing so on behalf of a
foreign power. The government has never used this broadened definition operationally. The roving wiretap
authority modified FISA to permit the government to seek a FISA court order to conduct electronic surveillance
without having to specify the entities from whom technical assistance will be required. This authority enables
continued surveillance should an individual switch from one provider to another.
47 (U) Some provisions of the USA Freedom Act are not subject to sunset. These provisions include the new
oversight and transparency mechanisms described above.

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