112th Congress Rept. 112-645
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012
_______
August 2, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS AND ADDITIONAL VIEWS
[To accompany H.R. 5949]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5949) to extend the FISA Amendments Act of 2008 for
five years, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 9
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Advisory on Earmarks............................................. 11
Section-by-Section Analysis...................................... 12
Changes in Existing Law Made by the Bill, as Reported............ 12
Dissenting Views................................................. 13
Additional Views................................................. 21
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FISA Amendments Act Reauthorization
Act of 2012''.
SEC. 2. FIVE-YEAR EXTENSION OF FISA AMENDMENTS ACT OF 2008.
(a) Extension.--Section 403(b) of the FISA Amendments Act of 2008
(Public Law 110-261; 122 Stat. 2474) is amended--
(1) in paragraph (1), by striking ``December 31, 2012'' and
inserting ``December 31, 2017''; and
(2) in paragraph (2) in the material preceding subparagraph
(A), by striking ``December 31, 2012'' and inserting ``December
31, 2017''.
(b) Conforming Amendment.--The heading of section 404(b)(1) of the
FISA Amendments Act of 2008 (Public Law 110-261; 122 Stat. 2476) is
amended by striking ``december 31, 2012'' and inserting ``december 31,
2017''.
Purpose and Summary
The purpose of this bill is to extend for 5 years the FISA
Amendments Act of 2008.
Background and Need for the Legislation
In 2006 and 2007, then-Director of National Intelligence
Admiral Mike McConnell explained to Congress that due to recent
FISA court decisions, the government was forced to devote
substantial resources to obtaining court approvals--based on a
showing of probable cause--to conduct surveillance against
terrorists located overseas in some circumstances. This is
contrary to what Congress intended when it enacted the Foreign
Intelligence Surveillance Act (FISA) in 1978 and had come about
due to changes in telecommunication technology. Admiral
McConnell stated that the Intelligence Community was not
collecting approximately two-thirds of the foreign intelligence
information that it collected prior to legal interpretations
that required the government to obtain individualized FISA
court orders for overseas surveillance.
On July 10, 2008, President Bush signed into law the FISA
Amendments Act of 2008, which passed with a bipartisan majority
of Congress and broad support from the intelligence community.
The Act allows intelligence professionals to more quickly and
effectively monitor terrorist communications, while protecting
the civil liberties of Americans. Among other things, the law
accomplishes the following:
LEnsures that the intelligence community has
the tools it needs to determine who terrorists are
communicating with, what they are saying and what they
may be planning.
LProvides critical authorities that allow the
intelligence community to acquire foreign intelligence
information by targeting foreign persons reasonably
believed to be outside the United States.
LPreserves and provides new civil liberties
protections for Americans.
LRequires court orders to target Americans for
foreign intelligence surveillance, no matter where they
are, and requires court review of the procedures used
to protect information about Americans.
Specifically, the new law authorizes the targeting of non-
U.S. persons overseas to acquire foreign intelligence
information, subject to specific targeting and minimization
procedures that are reviewed by the FISA Court.
The Act permits the Attorney General and Director of
National Intelligence to obtain an annual certification from
the Foreign Intelligence Surveillance Court (FISC) to target
foreign persons reasonably believed to be located outside the
U.S. to acquire foreign intelligence information. Under exigent
circumstances, the Attorney General and Director of National
Intelligence may immediately authorize such targeting based
upon a determination that without immediate implementation of
an authorization, intelligence important to the national
security of the United States may be lost or not timely
acquired and time does not permit the issuance of an order.
The Act strengthens protections for U.S. citizens by
requiring the government to obtain an order from the FISC to
target them outside the United States to acquire foreign
intelligence information. Prior to 2008, targeting of U.S.
persons outside the U.S. was governed by Executive Order 12333,
which allowed the Attorney General to certify the targeting of
U.S. persons overseas.
The Act expands congressional oversight with a semi-annual
report to Congress from the Administration on certifications or
orders obtained under the Act, compliance reviews, and
incidents of noncompliance. The Act amends an existing
reporting requirement that requires the Attorney General to
submit to Congress a copy of any FISC order, opinion, or
decision, and the accompanying pleadings, briefs, and other
memoranda of law when the court's decision includes
``significant construction or interpretation of any provision''
of FISA. This expands the amount of background and supporting
material that the Committee will receive in connection with a
significant decision by the FISC. Prior to enactment of the
FISA Amendments Act in 2008, only ``decisions and opinions''
containing significant construction or interpretation of FISA
were required to be submitted to Congress.
At a hearing of the Subcommittee on Crime, Terrorism, and
Homeland Security, Mr. Kenneth Wainstein, former head of the
National Security Division of the Justice Department, testified
that:
In crafting this law, however, Congress recognized
that it had to balance the need for a judicial review
process for domestic surveillance against the
government's need to freely conduct surveillance
overseas. It accomplished that objective by clearly
distinguishing between surveillances directed against
persons located within the United States--where
constitutional protections apply--and those directed
against persons outside the United States, where the
fourth amendment does not apply. It then imposed the
court approval requirement on surveillances directed
against persons within the United States and left the
Intelligence Community free to surveil overseas targets
without the undue burden of court process.
With the FAA set to expire at the end of this year, the
Administration has strongly urged Congress to reauthorize the
legislation. In a recent letter to Congress, both the Attorney
General and the DNI explain that the FAA ``has proven to be an
extremely valuable authority in protecting our nation from
terrorism and other national security threats.'' They represent
that the oversight of its implementation has been
comprehensive, citing the findings of their semi-annual
assessments 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 [FAA] requirements'' and that agency personnel ``are
appropriately focused on directing their efforts at non-United
States persons reasonably believed to be located outside the
United States.'' And importantly, they conclude that the
reauthorization of the FAA ``is the top legislative priority of
the Intelligence Community.''
In support of the Administration's call for
reauthorization, Mr. Wainstein asked Congress to focus on the
three considerations: (1) the vital importance of the FAA
surveillance authority to our counterterrorism efforts; (2) the
extreme care with which Members of Congress considered, crafted
and limited that authority when they passed the FAA 4 years
ago; and (3) the representations of the Executive Branch that
that authority has been implemented to great effect and with
full compliance with the law and the Constitution.
America and its allies face continuous national security
threats from foreign nations and terrorist organizations.
Foreign agents from rival nations continue to spy on the United
States. And al Qaeda and other terrorist networks continue to
plot attacks against America. America's security cannot be
guaranteed at the border. Congress must ensure that our
national security agencies are able to gather foreign
intelligence information from foreign terrorists and nation-
states so that we can stop threats before they reach our
shores. The FISA Amendments Act has proven successful in
achieving this goal and must be extended for an additional 5
years.
Hearings
The Committee's Subcommittee on Crime, Terrorism and
Homeland Security held 1 day of hearings on H.R. 5949, on May
31, 2012. Testimony was received from (1) Mr. Keneith L.
Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, and
former Assistant Attorney General for the National Security
Division of the Department of Justice, and the former Homeland
Security Advisor to the President; (2) Mr. Marc Rotenberg,
President, Electronic Privacy Information Center (EPIC); (3)
Jameel Jaffer, Director, Center for Democracy, American Civil
Liberties Union (ACLU).
Committee Consideration
On June 19, 2012, the Committee on the Judiciary met in
open session and ordered the bill H.R. 5949 favorably reported,
without amendment, by recorded vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 5949.
1. An amendment by Mr. Conyers to reauthorize the FISA
Amendment Act to 2015. Defeated 12-12.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence.................................... X
Mr. Forbes................................... X
Mr. King.....................................
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan...................................
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy....................................
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle...................................
Mr. Amodei...................................
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 12 12
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2. An amendment by Mr. Nadler to require the Attorney
General to make publicly available a declassified summary of
every decision, order, or opinion of the Foreign Intelligence
Surveillance Court or the Foreign Intelligence Surveillance
Court of Review that includes a significant construction or
interpretation of Section 702 of the Foreign Intelligence
Surveillance Act of 1978. Defeated, 14-17.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence.................................... X
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle...................................
Mr. Amodei...................................
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee..............................
Ms. Waters................................... X
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis.................................... X
--------------------------
Total.................................... 14 17
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3. An Amendment by Mr. Scott to amend Section 702(l) of the
Foreign Intelligence Surveillance Act of 2008 to require that
each assessment or review under paragraph 1, 2 or 3 shall be
published in unclassified form but may have a classified annex.
Defeated, 10-19.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence.................................... X
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle...................................
Mr. Amodei...................................
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 10 19
------------------------------------------------------------------------
4. An amendment by Ms. Jackson Lee to require a report by
the Inspector General of the Department of Justice and the
Inspector General of that Intelligence Community on the
implementation of the amendments made by the FISA Amendments
Act of 2008. Defeated, 11-20.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence.................................... X
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle...................................
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 11 20
------------------------------------------------------------------------
5. On Reporting the bill favorably to the House. Passed 23-
11.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble.................................... X
Mr. Gallegly................................. X
Mr. Goodlatte................................ X
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa..................................... X
Mr. Pence.................................... X
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert.................................. X
Mr. Jordan................................... X
Mr. Poe...................................... X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle...................................
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman................................... X
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren.................................. X
Ms. Jackson Lee.............................. X
Ms. Waters................................... X
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu...................................... X
Mr. Deutch................................... X
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 23 11
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 5949, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 2, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5949, the ``FISA
Amendments Act Reauthorization Act of 2012.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 5949--FISA Amendments Act Reauthorization Act of 2012.
As ordered reported by the House Committee on the Judiciary
on June 19, 2012.
H.R. 5949 would extend the authority of the Federal
Government to conduct surveillance pursuant to the FISA
Amendments Act of 2008 (Public Law 110-261). Because CBO does
not provide cost estimates for classified programs, this
estimate addresses only the budgetary effects on unclassified
programs affected by the bill. On that basis, CBO estimates
that implementing H.R. 5949 would have no significant cost to
the Federal Government. Enacting the bill could affect direct
spending and revenues; therefore, pay-as-you-go procedures
apply. However, CBO estimates that any effects would be
insignificant for each year.
The FISA Amendments Act of 2008 clarified the authority of
the Federal Government to surveil and intercept communications
of certain persons located outside the United States. H.R. 5949
would extend the provisions of that act by five years
(otherwise they expire after December 31, 2012). As a result,
the government might be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that H.R. 5949
would apply to a relatively small number of additional
offenders, however, so any increase in costs for law
enforcement, court proceedings, or prison operations would not
be significant. Any such costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 5949
could be subject to criminal fines, the Federal Government
might collect additional fines if the legislation is enacted.
Criminal fines are deposited as revenues in the Crime Victims
Fund and later spent. CBO expects that any additional revenues
and direct spending would not be significant because of the
relatively small number of cases likely to be affected.
The bill would impose both private-sector and
intergovernmental mandates by extending an existing mandate
that would limit civil actions and require providers of
communication services to provide information. There is little
information about the prevalence of electronic surveillance in
those cases or the scope or size of potential awards from such
cases. Consequently, CBO cannot determine whether the costs of
those mandates would exceed the annual threshold established by
the Unfunded Mandates Reform Act (UMRA) for private-sector
mandates ($146 million in 2012, adjusted annually for
inflation).
However, few public entities receive requests for such
information, and the costs on them would be small. The bill
also would extend an existing preemption on State and local
governments regarding legal rights of action. CBO estimates
that the costs to public entities of all the intergovernmental
mandates in the bill would be small and well below the annual
threshold established in UMRA ($73 million in 2012, adjusted
annually for inflation).
On May 18, 2011, CBO transmitted a cost estimate for H.R.
1800, the FISA Sunsets Reauthorization Act of 2011, as ordered
reported by the House Committee on the Judiciary on May 12,
2011. That bill would extend certain powers of the Federal
Government to investigate terrorist acts. CBO estimated that
implementing H.R. 1800 would have no significant cost to the
Federal Government.
The CBO staff contacts for this estimate are Mark Grabowicz
and Jason Wheelock (for Federal costs), J'nell L. Blanco (for
the impact on State and local governments), and Elizabeth Bass
(for the impact on the private sector). The estimate was
approved by Theresa Gullo, Deputy Assistant Director for Budget
Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5949, makes improvements to the criminal code that will help
law enforcement officials pursue those who steal and traffic
pre-retail medical cargo.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5949 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title
This section cites the short title of the bill as the ``The
FISA Amendment Act Reauthorization Act of 2012.''
Section 2. Extends the Authorization for Five Years.
This section changes the expiration date of the FISA
Amendments Act of 2008 to from December 31, 2012 to December
31, 2017.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
FISA AMENDMENTS ACT OF 2008
* * * * * * *
TITLE IV--OTHER PROVISIONS
* * * * * * *
SEC. 403. REPEALS.
(a) * * *
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404,
effective [December 31, 2012] December 31, 2017, title
VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 101(a), is repealed.
(2) Technical and conforming amendments.--Effective
[December 31, 2012] December 31, 2017--
(A) * * *
* * * * * * *
SEC. 404. TRANSITION PROCEDURES.
(a) * * *
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on [december 31, 2012]
december 31, 2017.--Notwithstanding any other provision
of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), any order, authorization, or
directive issued or made under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by
section 101(a), shall continue in effect until the date
of the expiration of such order, authorization, or
directive.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 5949, the ``FISA Amendments Act Reauthorization Act of
2012,'' extends the expiration date of the Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2008 (FAA or
Act),\1\ which authorizes the Federal Government to conduct
electronic surveillance of persons reasonably believed to be
outside the United States, from December 31, 2012 to June 1,
2017.
---------------------------------------------------------------------------
\1\Pub. L. No. 110-261, 122 Stat. 2435 (2008).
---------------------------------------------------------------------------
We strongly oppose this bill because it effectuates an
unwarranted long-term extension of a controversial law that may
have been used to violate the privacy interests of American
citizens. To shed light on the scope of these alleged
violations, we offered at the Committee's markup of H.R. 5949 a
series of amendments that would have required certain
information to be disclosed to the public and allowed Congress
to exercise more effective oversight of the FAA. These
carefully crafted amendments would not have compromised our
national security or the integrity of the Act's underlying
programs. Unfortunately, none of these amendments were adopted,
and the Committee thereby missed an opportunity to improve a
highly controversial law.
H.R. 5949 is opposed by the American-Arab Anti-
Discrimination Committee, the American Association of Law
Libraries, the American Civil Liberties Union, the American
Library Association, the Association of Research Libraries, the
Brennan Center for Justice, the Center for Democracy &
Technology, the Council on American-Islamic Relations, the
Cyber Privacy Project, the Defending Dissent Foundation, Demand
Progress, the Electronic Frontier Foundation, the Government
Accountability Project, the Liberty Coalition, the National
Association of Criminal Defense Lawyers, and
OpenTheGovernment.org.\2\
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\2\Letter to Representatives F. James Sensenbrenner, Jr. (R-WI),
Chairman, & Robert C. ``Bobby'' Scott (D-VA), Ranking Member, H.
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on
the Judiciary, from representatives of the American-Arab Anti-
Discrimination Committee, the American Association of Law Libraries,
the American Civil Liberties Union, the American Library Association,
the Association of Research Libraries, the Brennan Center for Justice,
the Center for Democracy & Technology, the Council on American-Islamic
Relations, the Cyber Privacy Project, the Defending Dissent Foundation,
Demand Progress, the Electronic Frontier Foundation, the Government
Accountability Project, the Liberty Coalition, the National Association
of Criminal Defense Lawyers, and OpenTheGovernment.org, (June 11, 2012)
(on file with H. Comm. on the Judiciary Democratic Staff).
---------------------------------------------------------------------------
For these reasons, and those described below, we must
respectfully dissent.
DESCRIPTION AND BACKGROUND
DESCRIPTION
H.R. 5949 extends the expiration date of the FAA from
December 31, 2012 to June 1, 2017.
BACKGROUND
I. The Foreign Intelligence Surveillance Act
In 1978, the Foreign Intelligence Surveillance Act
(``FISA'') was enacted to establish a statutory framework for
gathering ``foreign intelligence information'' from U.S.
persons.\3\ FISA authorizes special court orders for four
purposes: electronic surveillance, physical searches, the
installation and use of pen registers and trap and trace
devices, and demands for the production of physical items.
Although FISA is designed for intelligence gathering and not
for the collection of criminal evidence, the law applies to
activities to which a Fourth Amendment warrant requirement
would apply if they were conducted as part of a criminal
investigation.\4\
---------------------------------------------------------------------------
\3\50 U.S.C. Sec. Sec. 1801 et seq.
\4\See 50 U.S.C. Sec. 1801(f)(1) (limiting the definition of
``electronic surveillance'' to instances ``in which a person has a
reasonable expectation of privacy and a warrant would be required for
law enforcement purposes'').
---------------------------------------------------------------------------
Most commonly, authorization for a wiretap or physical
search under FISA is obtained by application to the Foreign
Intelligence Surveillance Court (``FISC'' or the ``FISA
court''). The FISC is composed of eleven Federal district court
judges designated by the Chief Justice of the United States.\5\
In most circumstances, the FISC will approve an application to
conduct electronic surveillance of a U.S. person if there is
probable cause to believe that the target is the agent of a
foreign power. In exigent circumstances, FISA also allows the
government to collect foreign intelligence information without
FISC supervision for a limited period of time.\6\
---------------------------------------------------------------------------
\5\50 U.S.C. Sec. 1803(a)(1).
\6\Id. Sec. 1824(a).
---------------------------------------------------------------------------
II. Events Leading to the Enactment of the FAA
Preceding the enactment of the FAA in 2008 were two
programs aimed at intercepting overseas communications: the
warrantless wiretapping program, which was conducted without
congressional authorization from 2001 to 2007, and the now-
repealed Protect America Act.
A. Warrantless Wiretapping (2001-2007)
In 2005, The New York Times reported that the Federal
Government had ``monitored the international telephone calls
and international e-mail messages of hundreds, perhaps
thousands, of people in the United States without
warrants.''\7\ Subsequently, President George W. Bush
acknowledged that he had authorized the National Security
Agency (NSA) to ``intercept international communications into
and out of the United States'' by ``persons linked to al Qaeda
or related terrorist organizations,'' based solely on ``his
constitutional authority to conduct warrantless wartime
electronic surveillance of the enemy.''\8\
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\7\James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers
without Courts, N.Y. Times, Dec. 16, 2005, at 1, available at http://
www.nytimes.com/2005/12/16/politics/16
program.html?_r=1.
\8\U.S. Dept. of Justice, Legal Authorities Supporting the
Activities of the National Security Agency Described by the President,
at 5, 17, Jan. 19, 2006, available at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
---------------------------------------------------------------------------
The House and Senate intelligence committees were not
informed of the full scope of this program until early 2006. As
the Senate Select Committee on Intelligence concluded:
The enormous secrecy surrounding the President's
Program had little to do with the operational
sensitivity of the collection methods. It was widely
known that the NSA was surveilling terrorists. What was
``sensitive'' was that the surveillance was not lawful:
it violated a statute passed by Congress and signed
into law by the President.\9\
---------------------------------------------------------------------------
\9\S. Rep. No. 110-209, at 13 (2007).
On January 17, 2007, Attorney General Alberto Gonzales
stated to Congress that ``any electronic surveillance that was
occurring as part of the Terrorist Surveillance Program will
now be conducted subject to the approval of the Foreign
Intelligence Surveillance Court.''\10\ Several groups filed
suit alleging statutory and constitutional violations by the
telecommunications companies that participated in the program,
and the question of retroactive immunity for these companies
became central to debate about what statutory authority, if
any, would replace the NSA program.
---------------------------------------------------------------------------
\10\Letter from Attorney General Alberto Gonzales to the Senate
Judiciary Committee (Jan. 17, 2007).
---------------------------------------------------------------------------
B. The Protect America Act (2007-2008)
On July 18, 2007, the Bush Administration announced that it
had submitted a bill to Congress to amend FISA. President Bush
explained that FISA was ``badly out of date,'' despite several
recent revisions, and that the Act did not apply to new
technologies like disposable cell phones or internet-based
communications.\11\ Pressure from the Bush Administration
interrupted negotiations on bipartisan legislation, and the
Protect America Act (``PAA'') was signed into law on August 5,
2007.\12\
---------------------------------------------------------------------------
\11\The White House, ``President's Radio Address'' (broadcast July
28, 2007).
\12\Protect America Act of 2007, Pub. L. No. 110-55 (2007)
(expired).
---------------------------------------------------------------------------
The PAA modified FISA's definition of ``electronic
surveillance'' to exclude from court oversight any surveillance
``directed at a person reasonably believed to be outside of the
United States.''\13\ This change was put forward as means to
explicitly exclude from FISA purely foreign communications
routed through United States telecommunications networks. In
practice, however, the mechanism stripped away many protections
for U.S. persons as well.\14\
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\13\50 U.S.C. Sec. 1805A (expired).
\14\For example, FISA restricts the dissemination of information
about U.S. persons acquired from ``electronic surveillance.'' By
excluding surveillance activities from the definition of ``electronic
surveillance,'' the PAA also rolled back these protections.
---------------------------------------------------------------------------
The PAA also set up a new procedure under which the
Attorney General or the Director of National Intelligence,
without court oversight, could obtain foreign intelligence
information ``concerning'' persons outside the United States.
The Administration simply certified to itself that the
acquisition did not fit the new definition of ``electronic
surveillance,'' and that a ``significant purpose'' of the
acquisition was to obtain foreign intelligence.\15\ These
certifications were not subject to judicial review. The word
``concerning'' was read to allow warrantless surveillance of
American citizens, including members of the U.S. armed forces,
both at home and abroad.
---------------------------------------------------------------------------
\15\50 U.S.C. Sec. 1805B(a) (expired).
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In effect, the PAA compelled telecommunications companies
to allow the government immediate access to their facilities
for data collection. Any entity that refused ran the risk of a
contempt citation from the FISC.\16\ The PAA provided
prospective immunity for entities that cooperated with the
government, but did not address the question of retroactive
immunity.\17\ Because of its controversial nature, Congress
included a 180-day sunset of the PAA.\18\ The statute expired
on February 17, 2008, and was explicitly repealed by the FISA
Amendments Act.
---------------------------------------------------------------------------
\16\Id. Sec. Sec. 1805B(e) and (g) (expired).
\17\Id. Sec. 1805B(l) (expired).
\18\Pub. L. No. 110-55 Sec. 6(c) (2007).
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III. Overview of the FAA
Signed into law on July 10, 2008, the FAA added title VII
to FISA. This new title sets forth procedures for the
acquisition of foreign intelligence information from overseas
targets. Title VII applies to three types of intelligence
collection: (1) targeting non-U.S. persons who are reasonably
believed to be outside the United States;\19\ (2) gathering
electronic communications or other data in the United States
with respect to U.S. persons who are outside the United
States;\20\ and (3) ``other acquisitions'' targeting U.S.
persons who are outside the United States.\21\
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\19\50 U.S.C. Sec. 1881a.
\20\Id. Sec. 1881b.
\21\Id. Sec. 1881c. This provision is used when section 1881b is
unavailable--i.e., because acquisition takes place outside the United
States, or because the action involves something other than electronic
surveillance, like a physical search.
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All three of these authorities are scheduled to sunset on
December 31, 2012.\22\ The Obama Administration has asked that
Congress reauthorize these authorities through June 1,
2017.\23\ In closed session, on May 22, 2012, the Senate Select
Committee on Intelligence approved S. 3276, the ``FAA Sunsets
Extension Act of 2012,'' to extend title VII for 5 years. H.R.
5949 is substantively identical to S. 3276.
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\22\Pub. L. 110-261 Sec. 403(b) (2008).
\23\Letter to Speaker John Boehner, Speaker, U.S. House of
Representatives et al. from James R. Clapper, Director of National
Intelligence (Mar. 26, 2012).
---------------------------------------------------------------------------
Of the three authorities described in title VII, section
702 is the most controversial. This provision authorizes the
Attorney General and the Director of National Intelligence--for
up to 1 year--``to acquire foreign intelligence information''
from ``persons reasonably believed to be located outside the
United States.''\24\ The FAA explicitly limits this power in
several key aspects:
---------------------------------------------------------------------------
\24\50 U.S.C. Sec. 1881a.
LThe government may not intentionally target
any person known at the time of acquisition to be in
---------------------------------------------------------------------------
the United States;
LThe government may not engage in ``reverse
targeting,'' i.e., targeting a non-U.S. person outside
the United States for the purpose of intercepting the
communications of a U.S. person without a warrant;
LThe government may not intentionally target a
U.S. person;
LThe government may not intentionally acquire
a communication that is sent and received entirely by
persons known to be within the United States, and
LAny surveillance under this authority must be
conducted in a manner consistent with the Fourth
Amendment.\25\
---------------------------------------------------------------------------
\25\Id. Sec. 1881a(b).
In addition, the government is obligated to use ``targeting
procedures'' to narrow the scope of collection and
``minimization procedures'' to limit the retention and
dissemination of information about U.S. persons.\26\ Targeting
procedures are the steps that the government takes prior to
collection to ensure that it only targets non-U.S. persons
overseas. Minimization procedures go into effect after
collection, and describe how the government will handle
information that falls outside the legal limits of the FAA.
---------------------------------------------------------------------------
\26\Id. Sec. Sec. 1881a(d) and (e).
---------------------------------------------------------------------------
The government is not required to obtain a warrant to
conduct surveillance under this authority. Instead, the
government must certify that appropriate targeting and
minimization procedures are in place before surveillance
begins.\27\ If the certification is complete and targeting and
minimization procedures are adequate, then the FISC enters an
order approving the collection. Otherwise, the government has
30 days to correct any deficiencies in the application or cease
its surveillance activities.\28\ In exigent circumstances, the
government may conduct surveillance for up to 7 days before
submitting the related certification to the FISC.\29\
---------------------------------------------------------------------------
\27\Id. Sec. 1881a(g).
\28\Id. Sec. 1881a(i)(3).
\29\50 U.S.C. Sec. 1881a(g)(B).
---------------------------------------------------------------------------
The FAA also bars the initiation or continuation of civil
suits, in state and Federal court, against any entity ``for
providing assistance to an element of the intelligence
community.''\30\ This provision includes retroactive immunity
for telecommunications companies that participated in the
warrantless wiretapping program ``authorized by the President
during the period beginning on September 11, 2001, and ending
on January 17, 2007.''\31\ The courts have upheld the
constitutionality of this retroactive immunity against claims
based in the First Amendment, the Due Process Clause of the
Fifth Amendment, and the separation of powers.\32\ This
provision of the FAA is not scheduled to expire.
---------------------------------------------------------------------------
\30\Id. Sec. 1885a.
\31\Id. Sec. 1885a(a)(4).
\32\In re National Security Agency Telecommunications Records
Litigation, 633 F. Supp. 2d 949 (N.D. Cal. 2009). The court also
rejected a challenge under the Administrative Procedure Act. Id. at
974-76.
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CONCERNS WITH H.R. 5949
The FAA raises significant civil liberties concerns.
Without question, it enables the government to collect
significant and valuable foreign intelligence. It also
authorizes the interception of private communications with U.S.
citizens and other individuals lawfully on U.S. soil, thereby
presenting serious incursions against the privacy protections
afforded by the Fourth Amendment and the rights of free speech
and association under the First Amendment. Congress should not
reauthorize these authorities unless the executive branch can
assure all Americans publicly--to the greatest extent
possible--that these concerns have been adequately addressed.
At the Committee's markup, we offered amendments that would
have left the underlying authorities of the FAA intact, but
have required the government to make basic, non-sensitive
information available to the public. The FAA is an important
tool for intelligence gathering, but classified reports and
secret court opinions are no substitute for public oversight.
I. The Public Has a Right to Know How the Government Uses Warrantless
Wiretapping Authorities
Under section 702 of FISA, as added by the FAA, the
government can and does intercept the communications of U.S.
citizens, even in the absence of any particularized warrant or
showing of probable cause. This approach to electronic
surveillance raises concerns under the Fourth Amendment, which
prohibits unreasonable searches, warrantless eavesdropping, and
the use of ``general warrants.''\33\ In light of the fact that
many United States entities, e.g., reporters, lawyers,
religious groups, and human rights organizations, frequently
communicate with overseas persons who are likely targets of
section 702, this authority also raises First Amendment
questions about the chilling effect of electronic surveillance
on free speech and free association.
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\33\The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
---------------------------------------------------------------------------
searched, and the persons to be seized.
U.S. Const. amend. IV.
Section 702 imposes three different reporting requirements
on the executive branch. Every 6 months, the Attorney General
and the Director of National Intelligence must evaluate the
effectiveness of targeting and minimization procedures.\34\
Each component of the intelligence community must review its
own use of section 702 authority.\35\ Finally, each agency that
uses section 702 must conduct an annual review of its
activities and their impact on U.S. persons.\36\
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\34\50 U.S.C. Sec. 1881a(l)(1).
\35\Id. Sec. 1881a(l)(2).
\36\Id. Sec. 1881a(l)(3).
---------------------------------------------------------------------------
Notwithstanding these requirements, the government has
released very little information about its use of the FAA. The
public has a right to know, at least in general terms, how
often section 702 is invoked, what kind of information the
government collects using this authority, and how the
government limits the impact of these programs on American
citizens.
During the Committee's markup of H.R. 5949, Representative
Bobby Scott (D-VA) offered an amendment that would have made
these basic items of information available to the public by
requiring the government to submit these reports to Congress in
unclassified form. This amendment would have give Americans a
sense of how the government uses the FAA, what kind of
information it collects under section 702, and what steps it
takes to protect U.S. citizens from unwarranted government
intrusion. The amendment would not have put sensitive
information at risk because it would permitted the government
to include a classified annex, if necessary, in each report. We
are disappointed that this simple change, necessary for
meaningful public participation in this debate, was defeated
ten to 19.
II. The Public Has a Right to Know How the Government Interprets these
Authorities
The FISA court plays a critical role in overseeing the
government's use of section 702. Since 2008, each time that the
intelligence community has sought to use this authority, the
government has applied to the court for approval of its
targeting and minimization procedures. These classified
opinions are available to Members of the Committee, but the
decisions and orders of the FISA court, which have shaped the
government's interpretation of the FAA over time, are not
available to the general public.
In markup, Representative Jerrold Nadler (D-NY) offered an
amendment that would have, for the first time, required the
government to publish unclassified summaries of this secret
body of law. Specifically, this amendment would have required
the Attorney General to provide an unclassified summary of each
decision, order, and opinion, issued by the FISA court that
includes a significant interpretation or construction of
section 702 of FISA.
The disclosures mandated by this amendment have had
bipartisan support. For example, the Subcommittee on Crime,
Terrorism, and Homeland Security held a hearing on
reauthorization of the FAA on May 31, 2012. At the conclusion
of that hearing, in response to a question about making more
information about electronic surveillance available to the
public, Chairman Sensenbrenner stated:
My guess is that, rather than playing the numbers game
either with the actual targets or the people who were
incidentally surveilled, perhaps decisions of the FISA
Court, particularly the review of the FISA court
appropriately redacted, would be able to give us the
answer to that question. . . . I have always been one
that has favored disclosure.\37\
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\37\The FISA Amendments Act: Hearing before the Subcomm. on Crime,
Terrorism, and Homeland Security of the H. Comm. on the Judiciary,
112th Cong. (2012) (statement of Chairman Sensenbrenner).
Chairman Sensenbrenner was correct. An appropriately
redacted summary of key FISA court opinions would go a long way
towards a public understanding of section 702, and would
underscore how seriously the FISC takes its oversight
responsibilities.
Given the fact that the Nadler amendment would have only
required summaries of these opinions--and not the opinions
themselves--the government would still be able to protect
sensitive intelligence sources and methods. This amendment
aimed only to make the legal reasoning of the FISA court
available to the public. It also sought to ensure that the
United States should not have a secret body of law.
Notwithstanding support from both Democrats and
Republicans, Representative Nadler's amendment failed by a vote
of 14 to 17.
III. The Public Has a Right to Know If Its Privacy Has Been Violated
On its face, the FAA prohibits the intentional targeting of
U.S. persons and persons located in the United States.
Targeting and minimization procedures are required to limit the
unintentional collection and use of information that the
government could not normally access without a warrant.
Unfortunately, the government has not always adhered to the
legal limits of section 702 authority.
The FAA had been in place for only a few months when The
New York Times reported that the NSA had ``overcollected''
domestic communications, a practice described as significant
and systematic, even if unintentional.\38\ Although the
government assures the committees of jurisdiction that this
issue has been corrected, nearly all of the oversight of these
programs is conducted in secret. As a result, the public has no
way of knowing that its right to privacy is secure.
---------------------------------------------------------------------------
\38\Eric Lichtblau & James Risen, Officials Say U.S. Wiretaps
Exceeded Law, N.Y. Times, Apr. 15, 2009, at A1, available at http://
www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all.
---------------------------------------------------------------------------
The most troubling aspect of section 702 is its impact on
the private communications of U.S. persons. The Office of the
Director of National Intelligence has stated 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 authority of the FAA.''\39\ The Inspector General of
the Intelligence Community has deferred to the NSA to reach a
similar conclusion.\40\
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\39\Letter to Senators Ron Wyden (D-OR) & Mark Udall (D-CO), S.
Select Comm. on Intelligence, from Kathleen Turner, Director of
Legislative Affairs, Office of the Director of National Intelligence
(July 26, 2011).
\40\Letter to Senators Ron Wyden (D-OR) & Mark Udall (D-CO), S.
Select Comm. on Intelligence, from I. Charles McCollough III, Inspector
General of the Intelligence Community (June 15, 2012).
---------------------------------------------------------------------------
We are prepared to accept that it might be difficult to
determine the exact number of U.S. persons whose communications
have been intercepted by the government under section 702, but
the intelligence community surely has the ability to arrive at
a rough estimate. If the government has never even estimated
how many Americans have had their communications collected
under the FAA, then the impact of this law on U.S. citizens may
be more pronounced than Congress ever intended.
To address this concern, Representative Sheila Jackson Lee
(D-TX) 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. The amendment would have also directed the Inspectors
General to review compliance incidents, with a particular focus
on recurring problems affecting the privacy of persons inside
the United States. The resulting report would have been made
public, with whatever redactions might be necessary to protect
properly classified information.
Although this amendment failed by a vote of 11 to 20, we
will continue to press the government to provide this
information.
IV. A 5-year Extension of this Law Ignores Our Oversight
Responsibilities
The Obama Administration has asked Congress to extend these
expiring authorities through December 31, 2017. If H.R. 5949
passes without amendment, no matter what the outcome of the
election this fall, the next presidential administration will
come and go before Congress next debates reauthorization of the
FAA.
The legislative branch, however, must do better. We must
require title VII of FISA to sunset earlier because this
ensures that the delicate balance between the need to collect
foreign intelligence information and the duty to protect the
civil rights of American citizens is maintained. Congress
should periodically revisit these authorities to examine the
government's record, and, if necessary, to scale back the power
we have given to the executive branch. Five years is simply too
long to ignore these responsibilities.
To address this shortcoming in the legislation, Ranking
Member John Conyers, Jr. (D-MI) offered an amendment that would
have moved the bill's sunset date to June 1, 2015. By requiring
a 3-year extension instead of the bill's 5-year extension, this
amendment was a very reasonable compromise between our national
security interests and our obligation to conduct meaningful
oversight. Ranking Member Conyers' amendment would have also
had the effect of synching these authorities with the three
sunsetting provisions of FISA enacted by the USA PATRIOT Act:
the roving wiretap provision, which permits the government to
follow an individual suspect, rather than a specific telephone
or device;\41\ the ``section 215'' business records provision,
which allows the government to demand virtually any information
or record from a person or business by showing that the seizure
is ``relevant'' to a national security investigation;\42\ and
the never-used ``lone wolf'' provision, which enables the
government to conduct surveillance on individuals suspected of
terrorist activity but unaffiliated with any terrorist
organization.\43\ This amendment would have enabled us to
consider all of these controversial FISA amendments at the same
time, instead of piecemeal over the course of the next 5 years.
---------------------------------------------------------------------------
\41\50 U.S.C. Sec. 1805 note.
\42\Id. Sec. Sec. 1861 note and 1862 note.
\43\Id. Sec. 1801 note.
---------------------------------------------------------------------------
There is little harm, and much to gain, from revisiting the
FAA sooner rather than later. Although the Conyers amendment
failed 12 to 12, we believe that we can still persuade our
colleagues to defend our oversight role and adopt a shorter
sunset.
CONCLUSION
Unless it is amended, H.R. 5949 will represent a failure to
conduct meaningful oversight of a controversial government
authority. Americans are entitled to know how this law affects
their constitutionally-protected rights to privacy, free
association, and free speech; and Congress has a responsibility
to withhold reauthorization of the FAA until a basic measure of
transparency is ensured.
For these reasons, we must respectfully dissent.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Judy Chu.
Jared Polis.
Additional Views
I concur in the dissent of my colleagues to H.R. 5949, the
``FISA Amendments Act Reauthorization Act of 2012.'' In
addition to the dissenting views detailed by my colleagues, I
offer these additional dissenting views. I believe there is
inadequate due process for U.S. persons in H.R. 5949. I was
prepared to introduce an amendment to the Committee markup of
H.R. 5949 that addressed this concern, but ultimately did not
file the amendment--a copy of that unfiled amendment is
included in this statement.
The FISA Amendments Act of 2008 (FAA) requires that an
order from the FISA Court be based on probable cause in order
to intentionally target any U.S. person for electronic
surveillance. [Sec. 703(c)(1)(B)] In addition, the FAA
prohibits so-called ``reverse targeting''--in which the
government targets a non-U.S. person for the purpose of
acquiring information on a particular, known U.S. person. [Sec.
702(b)(2)]
However, the FAA does not make it clear that the government
must obtain a warrant prior to searching for information
acquired incidentally on a U.S. person in compliance with Sec.
702. Instead, the information of U.S. persons in such a
situation is subject to guidelines and ``minimization
procedures'' that are adopted by the Attorney General and that
must be approved by the FISA Court--but which do not explicitly
include a warrant requirement under the FAA. [Secs. 702(f)(1)
and 702(c)(1)]
Congress should prohibit the Federal Government from
intentionally searching for information on a U.S. person in a
data pool amassed lawfully under Sec. 702 of FISA should such a
data pool ever be amassed--unless the searching official has a
warrant, consent of the data subject, an emergency
authorization, or a reasonable belief that the life or safety
of the data subject is threatened and the information is needed
to assist that person.
The prohibition on ``reverse targeting''--where the
government deliberately targets a non-U.S. person for the
purpose of acquiring information about a U.S. person at the
other end of the line--is not a substitute for a warrant
requirement to search a database for a U.S. person should such
a database ever be amassed pursuant to Sec. 702. Congress
should require a warrant for the government to search for any
U.S. person in that data if such data exists. ``Minimization
procedures'' are also not a substitute for a warrant in such a
case.
The government must comply with the Fourth Amendment at all
times, and the FAA should reflect that explicitly.
For the above reasons and those described in the dissenting
views, I concur and join in the dissent of my colleagues to
H.R. 5949.
Zoe Lofgren.
ATTACHMENT
