Calendar No. 424
112th Congress Report
SENATE
2d Session 112-174
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FAA SUNSETS EXTENSION ACT OF 2012
_______
June 7, 2012.--Ordered to be printed
_______
Mrs. Feinstein, from the Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 3276]
The Select Committee on Intelligence, having considered an
original bill (S. 3276) to extend certain amendments made by
the FISA Amendments Act of 2008, and for other purposes,
reports favorably thereon and recommends that the bill do pass.
BACKGROUND AND NEED FOR LEGISLATION
The sunset for Title VII of the Foreign Intelligence
Surveillance Act (FISA), as added by the FISA Amendments Act
(Public Law 110-261), is scheduled to occur on December 31,
2012. This bill extends the sunset to June 1, 2017. The
Director of National Intelligence (DNI) and the Attorney
General wrote to the leadership of the Senate and the House of
Representatives on February 8, 2012, to urge that Congress
reauthorize Title VII of FISA. They noted that the authorities
under this title of FISA allow the Intelligence Community to
collect vital information about international terrorists and
other important targets overseas while providing a
comprehensive regime of oversight to protect the civil
liberties and privacy of Americans. The DNI and Attorney
General also provided an unclassified background paper on the
structure, operation, and oversight of Title VII (reprinted in
the appendix of this report). On March 26, 2012, the DNI
provided the Administration's proposed legislation to extend
the sunset to June 1, 2017, and reauthorize Title VII without
amendment.
The Committee, since its inception in 1976, has considered
oversight of the Executive branch's use of electronic
surveillance for foreign intelligence purposes to be one of its
most important responsibilities. A central focus of that
oversight has been the implementation of FISA by the
Intelligence Community and the Department of Justice as well as
the interpretation and judicial oversight of FISA performed by
the Foreign Intelligence Surveillance Court (FISC). Consistent
with this focus, the Committee's oversight of the
implementation of the FISA Amendments Act has been extensive.
In addition to the letter and background paper described above,
the Committee has held several hearings and briefings on the
implementation of the FAA between 2008 and 2012. Committee
Members and staff have held numerous meetings with supervisors,
operators, analysts, lawyers, compliance officers, and others
at the National Security Agency, Department of Justice, Federal
Bureau of Investigation (FBI), Office of the DNI (ODNI), and
other relevant entities.
Specifically related to reauthorizing the FAA, the
Committee has received testimony in support from the Assistant
Attorney General for National Security, the DNI, the Director
of the FBI, the Director and Deputy Director of the National
Security Agency, the Director of the National Counterterrorism
Center, the General Counsel of the ODNI, and other officials.
The Committee has also received and considered views from
nongovernmental organizations with interests in FISA.
The Committee has found, based on its numerous hearings and
briefings since 2008, that the authorities provided under the
FISA Amendments Act have greatly increased the government's
ability to collect information and act quickly against
important foreign intelligence targets. The Committee has also
found that Title VII has been implemented with attention to
protecting the privacy and civil liberties of U.S. persons, and
has been the subject of extensive oversight by the Executive
branch, the FISC, as well as the Congress. As pointed out by
the Attorney General and DNI, failure to reauthorize Title VII
of FISA would ``result in a loss of significant intelligence
and impede the ability of the Intelligence Community to respond
quickly to new threats and intelligence opportunities.''
In light of its findings, the Committee has concluded that
the authorities of Title VII should be extended until June 1,
2017, a period of sufficient duration to help assure the
stability of this critical foreign intelligence collection
effort while the three branches of government continue their
close oversight of the use of these authorities.
OPERATION AND OVERSIGHT OF TITLE VII OF FISA
Title VII of FISA, as added by the FISA Amendments Act,
established procedures for the conduct of certain intelligence
collection activities targeting persons reasonably believed to
be located outside the United States. Under Section 702, the
FISC is authorized to approve annual certifications made by the
Attorney General and the DNI to obtain foreign intelligence
information by engaging in collection directed at non-U.S.
person reasonably believed to be located outside the United
States.\1\
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\1\In exigent circumstances, the Attorney General and the DNI may
authorize an immediate acquisition under Section 702; however, they
must then submit a certification to the FISC as soon as practicable,
but in no event later than seven days after they determined the
existence of such exigent circumstances.
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Section 702 also requires that the government adopt
targeting and minimization procedures, which must be reviewed
and approved by the FISC. The minimization procedures, in
particular, govern the handling of any information concerning
U.S. persons acquired incidentally under Section 702, including
procedures governing the retention and dissemination of such
information. These procedures serve to protect the privacy and
civil liberties of U.S. persons. The targeting procedures must
be reasonably designed to ensure that persons subjected to an
acquisition under Section 702 are reasonably believed to be
outside the United States.
Subject to FISC approval of the certifications and
procedures or an exigent circumstances determination, the
government may engage in intelligence collection directed at
non-U.S. persons abroad who fall within the scope of the
certification, without the requirement for individualized court
orders. In enacting this amendment to FISA, Congress ensured
there would be important protections and oversight measures to
safeguard the privacy and civil liberties of U.S. persons,
including specific prohibitions against using Section 702
authority to: ``intentionally target any person known at the
time of acquisition to be located in the United States;''
``intentionally target a person reasonably believed to be
located outside the United States if the purpose of such
acquisition is to target a particular, known person reasonably
believed to be in the United States;'' ``intentionally target a
United States person reasonably believed to be located outside
the United States;'' or ``intentionally acquire any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States.'' As an additional measure the
law also requires that an acquisition under Section 702 ``shall
be conducted in a manner consistent with the fourth amendment
to the Constitution of the United States.''
In addition to establishing procedures for obtaining
foreign intelligence information through collection directed at
non-U.S. persons reasonably believed to be located outside of
the United States, Title VII established new requirements in
Sections 703 and 704 for collection targeted against U.S.
persons located overseas. Prior to the enactment of the FISA
Amendments Act, elements of the Intelligence Community were
authorized to engage in collection under Section 2.5 of
Executive Order 12333, provided that the Attorney General made
a determination that there was probable cause to believe the
U.S. person target was a foreign power or agent of a foreign
power. After enactment of the FISA Amendments Act, Sections 703
and 704 provide the FISC with a specific grant of jurisdiction
to issue individualized court orders based upon a showing of
probable cause that the targeted U.S. person is reasonably
believed to be outside the United States and a foreign power,
agent of a foreign power, or an officer or employee of a
foreign power. Section 704, in particular, strengthens the
privacy protections and civil liberties of U.S. persons located
outside the United States by providing judicial review where
such review did not previously exist.
Title VII also imposes, with Title VI of FISA, substantial
reporting requirements on the government in order to enable
both judicial and congressional oversight, in addition to the
oversight performed within the Executive branch by the
Department of Justice, the Office of the DNI, the individual
agencies within the Intelligence Community, and the associated
Inspectors General. Section 702 requires semiannual assessments
by the Attorney General and the DNI that are provided to
Congress and the FISC. In addition, the Inspectors General of
the Department of Justice and certain elements of the
Intelligence Community are authorized to review the
implementation of Section 702 and must provide copies of any
such reviews to the Attorney General, DNI, and congressional
committees of jurisdiction. The head of each element of the
Intelligence Community conducting an acquisition under Section
702 is also required to perform annual reviews of the
implementation of Section 702 and provide copies of those
reviews to the FISC, Attorney General, DNI, and congressional
committees of jurisdiction. Also, Section 707 mandates
comprehensive semiannual reports by the Attorney General to the
congressional intelligence and judiciary committees on the
implementation of Title VII. Finally, pursuant to Section 601
of the Act, the Attorney General is required to provide a
semiannual report to congressional intelligence and judiciary
committees that includes summaries of significant legal
interpretations of FISA made by the FISC and copies of all
decisions, orders, or opinions of the FISC that include a
significant construction or interpretation of the Act.
It should also be clear what is not involved in this sunset
extension. Title VIII of FISA, which was added by Title II of
the FISA Amendments Act, established procedures for immunity
for electronic communication service providers who furnish
certain assistance to an element of the Intelligence Community,
including assistance furnished in connection with an
intelligence activity authorized by the President during the
period between 2001 and 2007. These immunity provisions are not
subject to a sunset. They have been subject, however, to
judicial review as provided for in Title VIII of FISA. Nothing
in the sunset extension in this bill will have any effect on
such litigation or the underlying immunity provision of Title
VIII of FISA.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
The following is a section-by-section analysis and
explanation of the FAA Sunsets Extension Act of 2012 that is
being reported by the Committee.
Section 1. Short title
Section 1 states that the Act may be cited as the ``FAA
Sunsets Extension Act of 2012.''
Section 2. Extension of FISA Amendments Act of 2008 Sunset
Section 2(a) amends Section 403(b)(1) of the FISA
Amendments Act of 2008 (Public Law 110-261; 50 U.S.C. 1881
note) by striking ``December 31, 2012'' and inserting ``June 1,
2017''.
Subsection (b) makes technical and conforming changes in
Section 403(b)(2) of the Act.
Subsection (c) amends the heading in Section 404(b)(1) of
the Act to strike ``DECEMBER 31, 2012'' and insert ``JUNE 1,
2017''.
COMMITTEE ACTION
On May 22, 2012, a quorum being present, the Committee met
to consider the bill and amendments. The Committee took the
following actions:
Votes on amendments to the committee bill
By unanimous consent, the Committee made the Chairman and
Vice Chairman's bill the base text for purposes of amendment.
The Committee also authorized the staff to make technical and
conforming changes in the bill and report, following the
completion of the mark-up.
By a vote of 12 ayes and 3 noes, the Committee determined
that Senator Wyden's motion to request that the Committee's
Technical Advisory Group be reconstituted to examine the FISA
Amendments Act was out of order. The votes in person or by
proxy were as follows: Chairman Feinstein--aye; Senator
Rockefeller--aye; Senator Wyden--no; Senator Mikulski--aye;
Senator Nelson--aye; Senator Conrad--no; Senator Udall--no;
Senator Warner--aye; Vice Chairman Chambliss--aye; Senator
Snowe--aye; Senator Burr--aye; Senator Risch--aye; Senator
Coats--aye; Senator Blunt--aye; Senator Rubio--aye.
By a vote of 2 ayes to 13 noes, the Committee rejected an
amendment offered by Senator Wyden and Senator Udall, to
require a report by the Inspector General of the Department of
Justice and the Inspector General of the Intelligence Community
on the implementation of the amendments made by the FISA
Amendments Act of 2008. The votes in person or by proxy were as
follows: Chairman Feinstein--no; Senator Rockefeller--no;
Senator Wyden--aye; Senator Mikulski--no; Senator Nelson--no;
Senator Conrad--no; Senator Udall--aye; Senator Warner--no;
Vice Chairman Chambliss--no; Senator Snowe--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Blunt--no;
Senator Rubio--no.
By a vote of 2 ayes to 13 noes, the Committee rejected an
amendment offered by Senator Wyden and Senator Udall,
concerning prohibitions on acquisition of or searching contents
of communications of United States persons. The votes in person
or by proxy were as follows: Chairman Feinstein--no; Senator
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--no;
Senator Nelson--no; Senator Conrad--no; Senator Udall--aye;
Senator Warner--no; Vice Chairman Chambliss--no; Senator
Snowe--no; Senator Burr--no; Senator Risch--no; Senator Coats--
no; Senator Blunt--no; Senator Rubio--no.
Vote to report the committee bill
The Committee voted to report the bill, by a vote of 13
ayes and 2 noes. The votes in person or by proxy were as
follows: Chairman Feinstein--aye; Senator Rockefeller--aye;
Senator Wyden--no; Senator Mikulski--aye; Senator Nelson--aye;
Senator Conrad--aye; Senator Udall--no; Senator Warner--aye;
Vice Chairman Chambliss--aye; Senator Snowe--aye; Senator
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator
Blunt--aye; Senator Rubio--aye.
COMPLIANCE WITH RULE XLIV
Rule XLIV of the Standing Rules of the Senate requires
publication of a list of any ``congressionally directed
spending item, limited tax benefit, and limited tariff
benefit'' that is included in the bill or the committee report
accompanying the bill. Consistent with the determination of the
Committee not to create any congressionally directed spending
items or earmarks, none have been included in the bill or the
report to accompany it. The bill and report also contain no
limited tax benefits or limited tariff benefits.
ESTIMATE OF COSTS
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On May 24,
2012, the Committee transmitted this bill to the Congressional
Budget Office and requested it to conduct an estimate of the
costs incurred in carrying out unclassified provisions.
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS
For the past four years, the Senate Select Committee on
Intelligence has conducted robust oversight of the Executive
Branch's use of the surveillance authorities added to the
Foreign Intelligence Surveillance Act (FISA) by the FISA
Amendments Act of 2008 (FAA). This oversight has included the
receipt and examination of over eight assessments and reviews
per year concerning the implementation of FAA surveillance
authorities, which by law are required to be prepared by the
Attorney General, the Director of National Intelligence, the
heads of various elements of the intelligence community, and
the Inspectors General associated with those elements. In
addition, the Committee has received and scrutinized un-
redacted copies of every classified opinion of the Foreign
Intelligence Surveillance Court (FISA Court) containing a
significant construction or interpretation of the law, as well
as the pleadings submitted by the Executive Branch to the FISA
Court relating to such opinions. Finally, the Committee has
conducted several full hearings on both FISA generally and FAA
specifically, which have been supplemented by numerous staff
meetings with officials from the National Security Agency
(NSA), Department of Justice (DOJ), Office of the Director of
National Intelligence (ODNI), Federal Bureau of Investigation
(FBI), and others.
As Chairman of the Committee, I appreciate the efforts
taken by the Executive Branch to keep the Committee fully
informed regarding the implementation of the FAA and for its
continued willingness to brief Members of Congress as we
consider legislation to extend those provisions of the law set
to expire on December 31, 2012.
Collectively, the assessments, reports, and other
information obtained by the Committee demonstrate that the
government implements the FAA surveillance authorities in a
responsible manner with relatively few incidents of non-
compliance. Where such incidents have arisen, they have been
the inadvertent result of human error or technical defect and
have been promptly reported and remedied. Through four years of
oversight, the Committee has not identified a single case in
which a government official engaged in a willful effort to
circumvent or violate the law. Moreover, having reviewed
opinions by the FISA Court, the Committee has also seen the
seriousness with which the Court takes its responsibility to
carefully consider Executive Branch applications for the
exercise of FAA surveillance authorities.
As a result of this oversight, the Committee has acted on a
large, bipartisan majority basis to reauthorize the parts of
this important legislation that are set to expire at the end of
this year. For the reasons described elsewhere in this report
concerning the intelligence value the FAA provides, I believe
that reauthorization is imperative.
As the Committee considered legislation to reauthorize
these expiring provisions, concerns were raised regarding the
effects that one provision (Section 702 of FISA) may have on
the privacy and civil liberties of U.S. persons. This provision
established a legal framework for the government to acquire
foreign intelligence by targeting non-U.S. persons who are
reasonably believed to be located outside the United States,
under a program that is approved by the FISA Court. The
concerns associated with this provision--some of which are
articulated elsewhere in this report--stem from the potential
for collection directed at non-U.S. persons located abroad to
result in incidental collection of communications of or
concerning U.S. persons. I understand these concerns, and would
like to explain why I believe that the existing FAA provisions
are adequate to address them.
First, Section 702 is narrowly tailored to ensure that it
may only be used to target non-U.S. persons located abroad. For
example, Section 702 includes specific prohibitions on
targeting U.S. persons or persons inside the United States and
engaging in so-called ``reverse targeting'' (i.e., targeting a
non-U.S. person abroad in order to obtain their communications
with a person inside the United States).
Second, Congress recognized at the time the FISA Amendments
Act was enacted that it is simply not possible to collect
intelligence on the communications of a party of interest
without also collecting information about the people with whom,
and about whom, that party communicates, including in some
cases non-targeted U.S. persons. It is important to recognize,
however, that a similar potential for incidental collection
concerning non-targeted U.S. persons exists under ?traditional?
FISA collection and law enforcement wiretaps, and it is a
concern that was addressed when the FAA was originally drafted.
Specifically, in order to protect the privacy and civil
liberties of U.S. persons, Congress mandated that, for
collection conducted under Section 702, the Attorney General
adopt, and the FISA Court review and approve, procedures that
minimize the acquisition, retention, and dissemination of
nonpublicly available information concerning unconsenting U.S.
persons.
Third, the numerous reporting requirements outlined above
provide the Committee with extensive visibility into the
application of these minimization procedures and enable the
Committee to evaluate the extent to which these procedures are
effective in protecting the privacy and civil liberties of U.S.
persons. Notably, the FISA Court, which receives many of the
same reports available to the Committee, has repeatedly held
that collection carried out pursuant to the Section 702
minimization procedures used by the government is reasonable
under the Fourth Amendment.
During the Committee?s consideration of this legislation,
several Senators expressed a desire to quantify the extent of
incidental collection under Section 702. I share this desire.
However, the Committee has been repeatedly advised by the ODNI
that due to the nature of the collection and the limits of the
technology involved, it is not reasonably possible to identify
the number of people located in the United States whose
communications may have been reviewed under Section 702
authority. Senators Ron Wyden and Mark Udall have requested a
review by the Inspector General of the NSA and the Inspector
General of the Intelligence Community to determine whether it
is feasible to estimate this number. The Inspectors General are
conducting that review now, thus making an amendment on this
subject unnecessary.
Finally, on a related matter, the Committee considered
whether querying information collected under Section 702 to
find communications of a particular United States person should
be prohibited or more robustly constrained. As already noted,
the Intelligence Community is strictly prohibited from using
Section 702 to target a U.S. person, which must at all times be
carried out pursuant to an individualized court order based
upon probable cause. With respect to analyzing the information
lawfully collected under Section 702, however, the Intelligence
Community provided several examples in which it might have a
legitimate foreign intelligence need to conduct queries in
order to analyze data already in its possession. The Department
of Justice and Intelligence Community reaffirmed that any
queries made of Section 702 data will be conducted in strict
compliance with applicable guidelines and procedures and do not
provide a means to circumvent the general requirement to obtain
a court order before targeting a U.S. person under FISA.
Ultimately, it is in the Nation?s interest to see this
statute reauthorized, and the first priority of this Congress
must be to ensure that this important law does not lapse at the
end of the year. The Committee's action to report a clean bill
that would extend the sunsets of the FISA Amendments Act,
without amendment that could impede its ultimate enactment, is
an important step in ensuring this result.
I look forward to moving this process forward, through the
Senate and in discussions with the House of Representatives.
Dianne Feinstein.
MINORITY VIEWS
The bill that is now being reported by the Senate
Intelligence Committee would extend the expiration date of the
FISA Amendments Act of 2008 from December 2012 to June 2017. We
opposed this long-term, multi-year extension because we believe
that Congress does not have an adequate understanding of the
impact that this law has had on the privacy of law-abiding
American citizens. In our view it is important for members of
Congress and the public to get a fuller understanding of this
law's privacy impact so that Congress can consider whether it
should be modified, rather than simply extended without
changes.
We are particularly concerned about a loophole in the law
that could allow the government to effectively conduct
warrantless searches for Americans' communications. Since we do
not know how many Americans have had their phone calls and
emails collected under this law, we believe that it is
particularly important to have strong rules in place to protect
the privacy of these Americans. We are disappointed that this
bill does not attempt to add these protections.
The central provision in the FISA Amendments Act added a
new section 702 to the original FISA statute. Section 702 was
designed to give the government new authorities to collect the
communications of people who are reasonably believed to be
foreigners outside the United States. Because section 702 does
not involve obtaining individual warrants, it contains language
specifically intended to limit the government's ability to use
these new authorities to deliberately spy on American
citizens.\1\
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\1\The FISA Amendments Act also contains provisions that are
intended to require the government to get an individual warrant before
delibrately collecting the communications of an American believed to be
outside the United States. These provisions, which were added by an
amendment offered b Senator Wyden, are now sections 703 and 704 of the
FISA statute.
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We have concluded, however, that section 702 currently
contains a loophole that could be used to circumvent
traditional warrant protections and search for the
communications of a potentially large number of American
citizens. We have sought repeatedly to gain an understanding of
how many Americans have had their phone calls or emails
collected and reviewed under this statute, but we have not been
able to obtain even a rough estimate of this number.
The Office of the Director of National Intelligence told
the two of us in July 2011 that ``it is not reasonably possible
to identify the number of people located in the United States
whose communications may have been reviewed'' under the FISA
Amendments Act. We are prepared to accept that it might be
difficult to come up with an exact count of this number, but it
is hard for us to believe that it is impossible to even
estimate it.
During the committee's markup of this bill we offered an
amendment that would have directed the Inspectors General of
the Intelligence Community and the Department of Justice to
produce an estimate of how many Americans have had their
communications collected under section 702. Our amendment would
have permitted the Inspectors General to come up with a rough
estimate of this number, using whatever analytical techniques
they deemed appropriate. We are disappointed that this
amendment was voted down by the committee, but we will continue
our efforts to obtain this information.\2\
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\2\We also proposed directing the committee's Technical Advisory
Group to study FISA Amendments Act collection and provide
recommendations for improvements. We were disappointed that our motion
to request that the Technical Advisory Group study this issue was ruled
by our colleagues to be out of order.
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We are concerned, of course, that if no one has even
estimated how many Americans have had their communications
collected under the FISA Amendments Act, then it is possible
that this number could be quite large. Since all of the
communications collected by the government under section 702
are collected without individual warrants, we believe that
there should be clear rules prohibiting the government from
searching through these communications in an effort to find the
phone calls or emails of a particular American, unless the
government has obtained a warrant or emergency authorization
permitting surveillance of that American.
Section 702, as it is currently written, does not contain
adequate protections against warrantless ``back door'' searches
of this nature. We offered an amendment during the committee's
markup of this bill that would have clarified the law to
prohibit searching through communications collected under
section 702 in an effort to find a particular American's
communications. Our amendment included exceptions for searches
that involved a warrant or an emergency authorization, as well
as for searches for the phone calls or emails of people who are
believed to be in danger or who consent to the search.\3\ We
were disappointed that this amendment was also voted down by
the committee, but we will continue to work to close this
loophole before the FISA Amendments Act is extended.
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\3\The full text of both of our amendments is below.
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We recognize that the collection that has taken place under
the FISA Amendments Act has produced some useful intelligence,
so our preference would be to enact a short-term
reauthorization to give Congress time to get more information
about the impact of this law on Americans' privacy rights and
consider possible modifications. We believe that protections
against warrantless searches for Americans' communications
should be added to the law immediately, however.
An obvious question that we have not answered here is
whether any warrantless searches for Americans' communications
have taken place. We are not suggesting that any warrantless
searches have or have not occurred, because Senate and
committee rules regarding classified information generally
prohibit us from discussing what intelligence agencies are
actually doing or not doing. However, we have an obligation as
elected legislators to discuss what these agencies should or
should not be doing, and we hope that a majority of our Senate
colleagues will agree with us that searching for Americans'
phone calls and emails without a warrant is something that
these agencies should not do.
Ron Wyden.
Mark Udall.
COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN (FOR HIMSELF AND MR. UDALL OF
COLORADO)
At the appropriate place, insert the following:
SEC. __. REPORT ON THE IMPLEMENTATION OF THE FISA AMENDMENTS ACT OF
2008.
(a) Requirement for Report.--Not later than one year after
the date of the enactment of this Act, the Inspector General of
the Department of Justice and the Inspector General of the
Intelligence Community shall submit to the entities described
in subsection (b) a report on the implementation of the
amendments made by the FISA Amendments Act of 2008 (Public Law
110-261; 122 Stat. 2436).
(b) Entities Described.--The entities described in this
subsection are the following:
(1) Congress.
(2) The Attorney General.
(3) The Director of National Intelligence.
(4) The court established under section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803).
(c) Content.--The report required by subsection (a) shall
include the following:
(1) An assessment of the impact that implementation
of section 702 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1881a) has had on the privacy of
persons inside the United States.
(2) An assessment of the extent to which acquisitions
made under such section 702 have resulted in the
acquisition or review of the contents of communications
of persons located inside the United States,
including--
(A) the number of persons located inside the
United States who have had the contents of
their communications acquired under such
section 702, and the number of persons located
inside the United States who have had the
contents of their communications reviewed under
such section 702; or
(B) if it is not possible to determine such
numbers, the estimate of the Inspectors General
of such numbers made using representative
sampling or other analytical techniques.
(3) A review of the Inspectors General of incidents
of non-compliance with such section 702, with a
particular focus on any types of non-compliance
incidents that have recurred, and the impact of such
non-compliance on the privacy of persons inside the
United States.
(4) An assessment of any significant instances in
which an intelligence agency may have complied with the
statutory language of such section 702, but not with
the spirit or intent of such section 702, and the
impact of such non-compliance on the privacy of persons
inside the United States.
(d) Consultation.--The Inspector General of the Department
of Justice and the Inspector General of the Intelligence
Community may consult with the inspectors general of elements
of the intelligence community in preparing the report required
by subsection (a).
(e) Access.--The Inspector General of the Department of
Justice and the Inspector General of the Intelligence Community
shall have all appropriate access needed to prepare the report
required by subsection (a).
(f) Public Disclosure.--The Inspector General of the
Department of Justice and the Inspector General of the
Intelligence Community shall make the report required by
subsection (a) available to the public. The version made
available to the public shall contain whatever redactions may
be necessary to protect properly classified information.
COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN (FOR HIMSELF AND MR. UDALL OF
COLORADO)
At the appropriate place, insert the following:
SEC.__. CLARIFICATION ON PROHIBITION ON ACQUISITION OF OR SEARCHING
CONTENTS OF COMMUNICATIONS OF UNITED STATES
PERSONS.
Section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a) is amended--
(1) in subsection (b), by redesignating paragraphs
(1) through (5) as subparagraphs (A) through (E),
respectively, and indenting such subparagraphs, as so
redesignated, an additional two ems from the left
margin;
(2) by striking ``An acquisition'' and inserting the
following:
``(1) In general.--An acquisition''; and
(3) by adding at the end the following:
``(2) Clarification on prohibition on acquisition of
or searching contents of communications of united
states persons.--
``(A) In general.--Except as provided in
subparagraph (B), nothing in this section may
be construed to permit--
``(i) the intentional acquisition of
the contents of communications of a
particular United States person; or
``(ii) the searching of the contents
of communications acquired under this
section in an effort to find
communications of a particular United
States person.
``(B) Concurrent authorization and exception
for emergency situations.--Subparagraph (A)
does not apply to a search of communications
related to a particular United States person
if--
``(i) such United States person is
the subject of an order or emergency
authorization authorizing electronic
surveillance or physical search under
section 105, 304, 703 or 704, or title
18, United States Code, for the
effective period of that order;
``(ii) the entity carrying out the
search has a reasonable belief that the
life or safety of such United States
person is threatened and the
information is sought for the purpose
of assisting that person; or
``(iii) such United States person has
consented to the search.''.
APPENDIX
BACKGROUND PAPER ON TITLE VII OF FISA PREPARED BY THE DEPARTMENT OF
JUSTICE AND THE OFFICE OF DIRECTOR OF NATIONAL INTELLIGENCE (ODNI)
This paper describes the provisions of Title VII of the
Foreign Intelligence Surveillance Act (FISA) that were added by
the FISA Amendments Act of 2008 (FAA).\5\ Title VII has proven
to be an extremely valuable authority in protecting our nation
from terrorism and other national security threats. Title VII
is set to expire at the end of this year, and its
reauthorization is the top legislative priority of the
Intelligence Community.
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\5\Title VII of FISA is codified at 50 U.S.C. Sec. Sec. 1881-1881g.
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The FAA added a new section 702 to FISA, permitting the
Foreign Intelligence Surveillance Court (FISC) to approve
surveillance of terrorist suspects and other foreign
intelligence targets who are non-U.S. persons outside the
United States, without the need for individualized court
orders. Section 702 includes a series of protections and
oversight measures to safeguard the privacy and civil liberties
interests of U.S. persons. FISA continues to include its
original electronic surveillance provisions, meaning that, in
most cases,\6\ an individualized court order, based on probable
cause that the target is a foreign power or an agent of a
foreign power, is still required to conduct electronic
surveillance of targets inside the United States. Indeed, other
provisions of Title VII extend these protections to U.S.
persons overseas. The extensive oversight measures used to
implement these authorities demonstrate that the Government has
used this capability in the manner contemplated by Congress,
taking great care to protect privacy and civil liberties
interests.
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\6\In very limited circumstances, FISA expressly permits
surveillance without a court order. See, e.g., 50 U.S.C. Sec. 1805(e)
(Attorney General may approve emergency surveillance if the standards
of the statute are met and he submits an application to the FISC within
seven days).
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This paper begins by describing how section 702 works, its
importance to the Intelligence Community, and its extensive
oversight provisions. Next, it turns briefly to the other
changes made to FISA by the FAA, including section 704, which
requires an order from the FISC before the Government may
engage in surveillance targeted at U.S. persons overseas.
Third, this paper describes the reporting to Congress that the
Executive Branch has done under Title VII of FISA. Finally,
this paper explains why the Administration believes it is
essential that Congress reauthorize Title VII.
1. Section 702 provides valuable foreign intelligence information about
terrorists and other targets overseas, while protecting the
privacy and civil liberties of Americans
Section 702 permits the FISC to approve surveillance of
terrorist suspects and other targets who are non-U.S. persons
outside the United States, without the need for individualized
court orders. The FISC may approve surveillance of these kinds
of targets when the Government needs the assistance of an
electronic communications service provider.
Before the enactment of the FAA and its predecessor
legislation, in order to conduct the kind of surveillance
authorized by section 702, FISA was interpreted to require that
the Government show on an individualized basis, with respect to
all non-U.S. person targets located overseas, that there was
probable cause to believe that the target was a foreign power
or an agent of a foreign power, and to obtain an order from the
FISC approving the surveillance on this basis. In effect, the
Intelligence Community treated non-U.S. persons located
overseas like persons in the United States, even though
foreigners outside the United States generally are not entitled
to the protections of the Fourth Amendment. Although FISA's
original procedures are proper for electronic surveillance of
persons inside this country, such a process for surveillance of
terrorist suspects overseas can slow, or even prevent, the
Government's acquisition of vital information, without
enhancing the privacy interests of Americans. Since its
enactment in 2008, section 702 has significantly increased the
Government's ability to act quickly.
Under section 702, instead of issuing individual court
orders, the FISC approves annual certifications submitted by
the Attorney General and the DNI that identify categories of
foreign intelligence targets. The provision contains a number
of important protections for U.S. persons and others in the
United States. First, the Attorney General and the DNI must
certify that a significant purpose of the acquisition is to
obtain foreign intelligence information. Second, an acquisition
may not intentionally target a U.S. person. Third, it may not
intentionally target any person known at the time of
acquisition to be in the United States. Fourth, it may not
target someone outside the United States for the purpose of
targeting a particular, known person in this country. Fifth,
section 702 prohibits the intentional acquisition of ``any
communication as to which the sender and all intended
recipients are known at the time of the acquisition'' to be in
the United States. Finally, it requires that any acquisition be
consistent with the Fourth Amendment.
To implement these provisions, section 702 requires
targeting procedures, minimization procedures, and acquisition
guidelines. The targeting procedures are designed to ensure
that an acquisition only targets persons outside the United
States, and that it complies with the restriction on acquiring
wholly domestic communications. The minimization procedures
protect the identities of U.S. persons, and any nonpublic
information concerning them that may be incidentally acquired.
The acquisition guidelines seek to ensure compliance with all
of the limitations of section 702 described above, and to
ensure that the Government files an application with the FISC
when required by FISA.
The FISC reviews the targeting and minimization procedures
for compliance with the requirements of both the statute and
the Fourth Amendment. Although the FISC does not approve the
acquisition guidelines, it receives them, as do the appropriate
congressional committees. By approving the certifications
submitted by the Attorney General and the DNI as well as by
approving the targeting and minimization procedures, the FISC
plays a major role in ensuring that acquisitions under section
702 are conducted in a lawful and appropriate manner.
Section 702 is vital in keeping the nation safe. It
provides information about the plans and identities of
terrorists, allowing us to glimpse inside terrorist
organizations and obtain information about how those groups
function and receive support. In addition, it lets us collect
information about the intentions and capabilities of weapons
proliferators and other foreign adversaries who threaten the
United States. Failure to reauthorize section 702 would result
in a loss of significant intelligence and impede the ability of
the Intelligence Community to respond quickly to new threats
and intelligence opportunities. Although this unclassified
paper cannot discuss more specifically the nature of the
information acquired under section 702 or its significance, the
Intelligence Community is prepared to provide Members of
Congress with detailed classified briefings as appropriate.
The Executive Branch is committed to ensuring that its use
of section 702 is consistent with the law, the FISC's orders,
and the privacy and civil liberties interests of U.S. persons.
The Intelligence Community, the Department of Justice, and the
FISC all oversee the use of section 702. In addition,
congressional committees conduct essential oversight, which is
discussed in section 3 below.
Oversight of activities conducted under section 702 begins
with components in the intelligence agencies themselves,
including their Inspectors General. The targeting procedures,
described above, seek to ensure that an acquisition targets
only persons outside the United States and that it complies
with section 702's restriction on acquiring wholly domestic
communications. For example, the targeting procedures for the
National Security Agency (NSA) require training of agency
analysts, and audits of the databases they use. NSA's Signals
Intelligence Directorate also conducts other oversight
activities, including spot checks of targeting decisions. With
the strong support of Congress, NSA has established a
compliance office, which is responsible for developing,
implementing, and monitoring a comprehensive mission compliance
program.
Agencies using section 702 authority must report promptly
to the Department of Justice and ODNI incidents of
noncompliance with the targeting or minimization procedures or
the acquisition guidelines. Attorneys in the National Security
Division (NSD) of the Department routinely review the agencies'
targeting decisions. At least once every 60 days, NSD and ODNI
conduct oversight of the agencies' activities under section
702. These reviews are normally conducted on-site by a joint
team from NSD and ODNI. The team evaluates and, where
appropriate, investigates each potential incident of
noncompliance, and conducts a detailed review of agencies'
targeting and minimization decisions.
Using the reviews by Department of Justice and ODNI
personnel, the Attorney General and the DNI conduct a semi-
annual assessment, as required by section 702, of compliance
with the targeting and minimization procedures and the
acquisition guidelines. The assessments have found that
agencies have ``continued to implement the procedures and
follow the guidelines in a manner that reflects a focused and
concerted effort by agency personnel to comply with the
requirements of Section 702.'' The reviews have not found ``any
intentional attempt to circumvent or violate'' legal
requirements. Rather, agency personnel ``are appropriately
focused on directing their efforts at non-United States persons
reasonably believed to be located outside the United
States.''\7\
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\7\Semiannual Assessment of Compliance with Procedures and
Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence
Surveillance Act, Submitted by the Attorney General and the Director of
National Intelligence, Reporting Period: December 1, 2010-May 31, 2011
at 2-3, 5 (December 2011).
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Section 702 thus enables the Government to collect
information effectively and efficiently about foreign targets
overseas and in a manner that protects the privacy and civil
liberties of Americans. Through rigorous oversight, the
Government is able to evaluate whether changes are needed to
the procedures or guidelines, and what other steps may be
appropriate to safeguard the privacy of personal information.
In addition, the Department of Justice provides the joint
assessments and other reports to the FISC. The FISC has been
actively involved in the review of section 702 collection.
Together, all of these mechanisms ensure thorough and
continuous oversight of section 702 activities.
2. Other important provisions of Title VII of FISA also should be
reauthorized
In contrast to section 702, which focuses on foreign
targets, section 704 provides heightened protection for
collection activities conducted overseas and directed against
U.S. persons located outside the United States. Section 704
requires an order from the FISC in circumstances in which the
target has ``a reasonable expectation of privacy and a warrant
would be required if the acquisition were conducted inside the
United States for law enforcement purposes.'' It also requires
a showing of probable cause that the targeted U.S. person is
``a foreign power, an agent of a foreign power, or an officer
or employee of a foreign power.'' Previously, these activities
were outside the scope of FISA and governed exclusively by
section 2.5 of Executive Order 12333.\8\ By requiring the
approval of the FISC, section 704 enhanced the civil liberties
of U.S. persons.
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\8\Since before the enactment of the FAA, section 2.5 of Executive
Order 12333 has required the Attorney General to approve the use by the
Intelligence Community against U.S. persons abroad of ``any technique
for which a warrant would be required if undertaken for law enforcement
purposes.'' The Attorney General must find that there is probable cause
to believe that the U.S. person is a foreign power or an agent of a
foreign power. The provisions of section 2.5 continue to apply to these
activities, in addition to the requirements of section 704.
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The FAA also added several other provisions to FISA.
Section 703 complements section 704 and permits the FISC to
authorize an application targeting a U.S. person outside the
United States to acquire foreign intelligence information, if
the acquisition constitutes electronic surveillance or the
acquisition of stored electronic communications or data, and is
conducted in the United States. Because the target is a U.S.
person, section 703 requires an individualized court order and
a showing of probable cause that the target is a foreign power,
an agent of a foreign power, or an officer or employee of a
foreign power. Other sections of Title VII allow the Government
to obtain various authorities simultaneously, govern the use of
information in litigation, and provide for congressional
oversight. Section 708 clarifies that nothing in Title VII is
intended to limit the Government's ability to obtain
authorizations under other parts of FISA.
3. Congress has been kept fully informed, and conducts vigorous
oversight, of Title VII's implementation
FISA imposes substantial reporting requirements on the
Government to ensure effective congressional oversight of these
authorities. Twice a year, the Attorney General must ``fully
inform, in a manner consistent with national security,'' the
Intelligence and Judiciary Committees about the implementation
of Title VII. With respect to section 702, this semi-annual
report must include copies of certifications and significant
FISC pleadings and orders. It also must describe any compliance
incidents, any use of emergency authorities, and the FISC's
review of the Government's pleadings. With respect to sections
703 and 704, the report must include the number of applications
made, and the number granted, modified, or denied by the FISC.
Section 702 requires the Government to provide to the
Intelligence and Judiciary Committees its assessment of
compliance with the targeting and minimization procedures and
the acquisition guidelines. In addition, Title VI of FISA
requires a summary of significant legal interpretations of FISA
in matters before the FISC or the Foreign Intelligence
Surveillance Court of Review. The requirement extends to
interpretations presented in applications or pleadings filed
with either court by the Department of Justice. In addition to
the summary, the Department must provide copies of judicial
decisions that include significant interpretations of FISA
within 45 days.
The Government has complied with the substantial reporting
requirements imposed by FISA to ensure effective congressional
oversight of these authorities. The Government has informed the
Intelligence and Judiciary Committees of acquisitions
authorized under section 702; reported, in detail, on the
results of the reviews and on compliance incidents and remedial
efforts; made all written reports on these reviews available to
the Committees; and provided summaries of significant
interpretations of FISA, as well as copies of relevant judicial
opinions and pleadings.
4. It is essential that Title VII of FISA be reauthorized well in
advance of its expiration
The Administration strongly supports the reauthorization of
Title VII of FISA. It was enacted after many months of
bipartisan effort and extensive debate. Since its enactment,
Executive Branch officials have provided extensive information
to Congress on the Government's use of Title VII, including
reports, testimony, and numerous briefings for Members and
their staffs. This extensive record demonstrates the proven
value of these authorities, and the commitment of the
Government to their lawful and responsible use.
Reauthorization will ensure continued certainty with the
rules used by Government employees and our private partners.
The Intelligence Community has invested significant human and
financial resources to enable its personnel and technological
systems to acquire and review vital data quickly and lawfully.
Our adversaries, of course, seek to hide the most important
information from us. It is at best inefficient and at worst
unworkable for agencies to develop new technologies and
procedures and train employees, only to have a statutory
framework subject to wholesale revision. This is particularly
true at a time of limited resources. It is essential that these
authorities remain in place without interruption--and without
the threat of interruption--so that those who have been
entrusted with their use can continue to protect our nation
from its enemies.
