112th Congress Rept. 112-645
HOUSE OF REPRESENTATIVES
2d Session Part 2
======================================================================
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. Rogers of Michigan, from the Permanent Select Committee on
Intelligence, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 5949]
[Including cost estimate of the Congressional Budget Office]
The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 5949) to extend the FISA Amendments Act
of 2008 for five years, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
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 H.R. 5949 is to extend the authorities
contained in the FISA Amendments Act of 2008 (``FAA''),
currently set to expire on December 31, 2012, to December 31,
2017.
Committee Statement and Views
A. INTRODUCTION
In 2008, with significant bipartisan support, Congress
passed the FAA. The FAA modernized the Foreign Intelligence
Surveillance Act of 1978 to account for significant changes in
technology that made the 30 year-old law an impractical and
ineffective tool for combatting the quickly evolving threats
facing our nation. The FAA gave our intelligence community the
speed and agility necessary to meaningfully collect foreign
intelligence while still preserving civil liberties. H.R. 5949
would extend the FAA for five years.
H.R. 5949 was requested by the Executive Branch. The
Director of National Intelligence and Attorney General have
stated that reauthorization of the FAA, which will expire at
the end of this year if Congress does not act, is ``the top
legislative priority of the Intelligence Community.''
In seeking a clean extension of the FAA, the Administration
has stated that the FAA ``allows the Intelligence Community to
collect vital information about international terrorists and
other important targets overseas'' while, ``at the same time .
. . provid[ing] a comprehensive regime of oversight by all
three branches of Government to protect the privacy and civil
liberties of U.S. persons.'' Moreover, the Administration has
stated that collection under the FAA is ``vital in keeping the
nation safe'' and that the ``[f]ailure to reauthorize [the FAA]
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.'' (Emphasis added).
H.R. 5949 would reauthorize the FAA for five years from its
current expiration date, extending its authorities through
December 31, 2017. Consistent with the Administration's
request, H.R. 5949, as reported, makes no modifications to the
original FAA. The Committee notes, however, that it continues
to review whether amendments should be made in the future to
strengthen authorities and oversight procedures, consistent
with issues identified as part of the Committee's oversight,
the needs of the Intelligence Community, and civil liberties
protections.
B. FOREIGN INTELLIGENCE COLLECTION UNDER THE FISA AMENDMENTS ACT
The FAA authorizes intelligence collection targeted against
non-U.S. persons located outside the United States. It permits
this collection to take place only under statutorily-required,
court approved targeting and minimization procedures. Such
procedures are designed to ensure that the government's
surveillance under this authority does not target Americans
anywhere in the world and, to ensure that if and when the
communications of Americans are incidentally intercepted, they
are handled pursuant to specific procedures designed to protect
the rights of such individuals, as approved by the court.
It is also important to note that the FAA significantly
increased protections for Americans around the world by
requiring that any electronic surveillance targeting a U.S.
person, no matter where they are located, be conducted pursuant
to court order. Prior to 2008, targeting U.S. persons located
outside the United States for intelligence collection only
required Attorney General authorization in many circumstances.
If Congress does not reauthorize the FAA, the requirement for
court approval for such surveillance will also expire.
The importance of the collection of foreign intelligence
under the FISA Amendments Act--while challenging to describe in
detail in an unclassified setting--cannot be underscored
enough. In short, intelligence collected under the FAA is
critically important to maintaining our national security. The
information collected under this authority is often unique,
unavailable from any other source, and regularly provides
critically important insights and operationally actionable
intelligence on terrorists and foreign intelligence targets
around the world.
The Attorney General and Director of National Intelligence
have provided the following unclassified description of
specific, actionable intelligence that was obtained through the
unique contribution of collection under the FISA Amendments
Act:
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.
The intelligence community has provided the intelligence
committees in both the House and the Senate with additional
details on the examples discussed above in a classified
setting, as well as other even more compelling examples of
specific, actionable intelligence obtained through the unique
lens of FISA Amendments Act collections. In addition, the
Permanent Select Committee on Intelligence has and will
continue to make available classified information to all
Members of the House regarding the information collected under
the FISA Amendments Act prior to consideration of the extension
by the House. The Committee believes that it is important for
all Members to have a better opportunity to understand how
critically important the information obtained under these
authorities is to our national security and hopes Members will
avail themselves of the opportunity to gain a better
understating of the FAA.
C. OVERSIGHT REGARDING COLLECTIONS CONDUCTED UNDER THE FISA AMENDMENTS
ACT
Collection under the FAA is subject to extensive oversight
by all three branches of government. By statute, the Executive
Branch is required to conduct detailed oversight over
collection conducted under the FAA and to report to Congress
with respect to this oversight. Specifically, the FISA
Amendments Act requires: (1) the Attorney General and Director
of National Intelligence to conduct semiannual assessments of
compliance with targeting and minimization procedures and
provided them to Congress; (2) the Inspectors General of the
Department of Justice and certain elements of the Intelligence
Community to conduct reviews of the implementation of certain
FISA Amendments Act authorities and provide them to Congress;
(3) the heads of the elements of the intelligence community
conducting collection under the FAA to conduct annual reviews
of the implementation of certain FAA authorities and provide
them to Congress; (4) the Attorney General to provide to
Congress a comprehensive semiannual report on the
implementation of the FAA, including a description of all
compliance incidents.
In addition, the Attorney General is required, under other
provisions of FISA, to provide a semiannual report to Congress
on the implementation of FISA generally, including summaries of
significant legal interpretations of FISA made by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review, and copies of all decisions,
orders, or opinions of these courts or government pleadings
that include a significant construction or interpretation of
FISA. The Executive Branch also conducts its oversight through
on-site reviews conducted every 60 days by the Department of
Justice's National Security Division and the Office of the
Director of National Intelligence.
Likewise, the Legislative Branch conducts extensive
oversight over collections conducted under the FAA. As noted
above, statutes require the provision of detailed information
to the Congressional intelligence and judiciary committees
regarding the oversight conducted by the Executive Branch and
reports of noncompliance with statutes and required procedures.
Since the passage of the FAA, the House Permanent Select
Committee on Intelligence has conducted extensive oversight on
the implementation of this legislation and the collection
conducted under its authority. In the 112th Congress alone, the
House Intelligence Committee has conducted two hearings and
over a dozen meetings and briefings specifically focused on
FISA and FAA.
Finally, the Judicial Branch, through the Foreign
Intelligence Surveillance Court, conducts its own independent
oversight of collection under the FISA Amendments Act through
its review of government certifications and targeting and
minimization procedures. The record before this Committee
indicates that the Foreign Intelligence Surveillance Court
takes its job very seriously, oftentimes digging deep into the
details of the government's collection methodology and
procedures, including the government's efforts to fully comply
with the law. And, rather than simply admonishing the
government when it experiences unavoidable compliance issues, a
review of the classified record presented to the Committee
demonstrates that the Court often strongly encourages the
government to impose stringent requirements upon itself to
address or ameliorate compliance issues, often going well
beyond the requirements of the FISA statute and the Fourth
Amendment.
The oversight this Committee has conducted since the FAA
was enacted in 2008 has shown no evidence that the Intelligence
Community has engaged in any intentional or willful failure to
comply with statutory requirements or Executive Branch policies
and procedures.
D. CHALLENGES IN COLLECTION AND OVERSIGHT MATTERS UNDER THE FISA
AMENDMENTS ACT
As the Committee reports H.R. 5949 to the full House and
urges a clean extension for five years, it is important to note
that the classified record before the Committee makes clear
that there are specific amendments to the FAA that would
substantially improve the government's ability to collect
foreign intelligence while also appropriately protecting the
rights of Americans.
A detailed discussion of potential changes to the
authorities is outside the scope of this report. The Committee
notes, however, that possible future amendments might be
beneficial to ensure the government can collect on the full
scope of communication techniques used by terrorists and other
foreign intelligence targets. Future amendments may also
clarify the appropriate scope and detail of the Foreign
Intelligence Court's review of certifications and other FAA
matters, (including the remedial authority of that Court), and
address the Executive Branch's responsibility to provide full
and timely information to Congress regarding its analysis of
legal matters before the Foreign Intelligence Surveillance
Court. The Committee is fully aware and cognizant of these
matters and is prepared to return to consideration of them at
the appropriate juncture.
E. CONCLUSION
If Congress does not reauthorize the authorities proposed
to be extended by H.R. 5949 the risk of potential catastrophic
results is real and significant. The Committee has conducted
substantial, ongoing, detailed oversight and the record
supports extension for--at a minimum--the proposed five-year
period. The Committee therefore unanimously reports H.R. 5949
favorably and urges the House to approve it expeditiously in
the interest of our national security.
Committee Hearings
The Committee held two hearings and multiple classified
briefings in the 112th Congress on the implementation of and
performance under authorities that would be extended by this
bill.
Committee Consideration and Rollcall Votes
On June 28, 2012, the Committee met in open session and
considered the bill H.R. 5949. Ms. Schakowsky offered an
amendment to H.R. 5949 that would amend the date of sunset from
December 31, 2017 to June 1, 2015.
The amendment was not agreed to by a record vote of 13 noes
and 4 ayes:
Noes: Mr. Rogers (Chairman), Mr. Thornberry, Mrs. Myrick,
Mr. Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr.
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Langevin, Mr.
Chandler.
Ayes: Mr. Thompson, Ms. Schakowsky, Mr. Schiff, Mr.
Gutierrez.
Ms. Schakowsky offered an amendment that would amend the
form of the assessments of procedures targeting certain persons
located outside the United States. The amendment was not agreed
to by a record vote of 15 noes and 2 ayes:
Noes: Chairman Rogers, Mr. Thornberry, Mrs. Myrick, Mr.
Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr.
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Thompson, Mr.
Langevin, Mr. Schiff, Mr. Chandler.
Ayes: Ms. Schakowsky, Mr. Gutierrez.
The Committee then adopted a motion by the Chairman to
favorably report the bill H.R. 5949 to the House. The motion
was agreed to by record vote of 17 ayes and 0 noes.
Ayes: Mr. Rogers (Chairman), Mr. Thornberry, Mrs. Myrick,
Mr. Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr.
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Thompson, Ms.
Schakowsky, Mr. Langevin, Mr. Schiff, Mr. Gutierrez, Mr.
Chandler.
Noes: None.
Section-by-Section Analysis and Explanation
Section 1. Short Title
The short title of the Act is the FISA Amendments Act
Reauthorization Act of 2012.
Section 2. Five-Year Extension of the FISA Amendments Act
Section [ ]: In General
This section of the Act amends Section 403 of the FISA
Amendments Act of 2008 by striking December 31, 2012 and
replacing it with December 31, 2017, in each appropriate
location in order to extend the expiration of the FISA
Amendments Act for five years. In addition, this section of the
Act makes conforming changes to other appropriate portions of
the FISA Amendments Act.
Oversight Findings and Recommendations
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises 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. The Committee held two
hearings and multiple classified briefings in the 112th
Congress on the implementation of and performance under
authorities that would be extended by this bill. The findings
have been incorporated in the Committee's classified annex to
annual Intelligence Authorization bills. In addition, the bill
extends requirements to include FAA provisions in the Attorney
General's long existing semi-annual report, and additional,
extensive semi-annual reporting to Congress on the new
authorities. The bill, as reported by the Committee, reflects
conclusions reached by the Committee in light of this oversight
activity. The Committee's views are further described in the
descriptive portions of this report.
General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, this legislation does not
authorize funding, and therefore clause 3(c)(4) does not apply.
The Committee's general performance goals and objectives for
the legislation are, however, reflected in the descriptive
portions of this report.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Statement on Congressional Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee states that the bill as
reported contains no congressional earmarks, limited tax
benefits, or limited tariff benefits.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 5949 from the Director of
the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 19, 2012.
Hon. Mike Rogers,
Chairman, Permanent Select Committee on Intelligence,
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 Jason
Wheelock.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 5949--FISA Amendments Act Reauthorization Act of 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 prosecute criminal cases that
it otherwise would not be able to pursue. 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 July 2, 2012, CBO transmitted a cost estimate for H.R.
5949, the FISA Amendments Act Reauthorization Act of 2012, as
ordered reported by the House Committee on the Judiciary on
June 19, 2012. Both versions of H.R. 5949 and their estimated
costs are the same. On July 19, 2012, CBO also transmitted a
cost estimate for S. 3276, the FISA Amendments Act
Reauthorization Act of 2012, as reported by the Senate Select
Committee on Intelligence on June 7, 2012. That bill is very
similar to both versions of H.R. 5949, and the estimated costs
are also the same.
The CBO staff contacts for this estimate are Jason Wheelock
and Mark Grabowicz (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.
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 italic, 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.
* * * * * * *
MINORITY VIEWS
As Members of the House Intelligence Committee, we have a
uniquely dual responsibility to ensure the Intelligence
Community has the resources, tools, and authorities needed to
protect America, and that the civil liberties of U.S. persons
are protected in the course of pursuing this goal. The
uniqueness of the responsibility is particularly relevant in
the context of the FISA Amendments Act (FAA) Reauthorization
Act of 2012.
The FAA provides the government with several of the
authorities it needs to facilitate our national security. As
members of the House Intelligence Committee, we have received
briefings on several of the benefits and accomplishments of
actions conducting using this authority. We are confident that
agency personnel implementing this authority do so with
deliberate consideration of the law. We are also confident that
the authority has proven beneficial to the protection of our
national security.
As Democrats on the House Intelligence Committee, we remain
particularly committed to keeping our citizens informed,
without providing our adversaries with information that can be
used to circumvent our national security efforts. Amendments
offered by Rep. Schakowsky emphasized several factors that were
considered in the course of drafting this legislation.
The goal of the first amendment was to shorten the sunset
provision of December 31, 2017 to June 1, 2015. This would
ensure a more timely review of the Executive branch's use of
this authority. Delaying the responsibility to review this
authority for 5 years is too long. We will be in the 115th
Congress, an entire presidential administration will have
passed, and all without a statutory demand to reconsider and
potentially realign this law with the desires of the American
people. The proposed amendment was one way to give Congress the
opportunity to ensure the implementation of this authority
matched its aspirations.
The goal of the second amendment was to create an
unclassified version of the Intelligence Community's numerous
assessments and reviews reports. This would make certain that
Congress could provide the public with an understanding of the
actions of their government. The Foreign Intelligence
Surveillance Act was initially passed to curb abuses in the
collection and use of intelligence information, foreign and
domestic. The FISA Amendments Act of 2008 goes a step further
by authorizing the government to collect foreign intelligence
information reasonably believed to be outside the United States
without a warrant. Today, the Intelligence Community conducts
oversight, the Foreign Intelligence Surveillance Court reviews
the procedures for legal sufficiency, and the Intelligence
Committee conducts its own oversight of this effort. Nearly all
of this oversight, however, is conducted in secret.
While the Committee has the benefit and responsibility of
having access to classified information, it is important that
the public has an understanding of the foreign intelligence
surveillance conducted under the FAA. The amendment to craft an
unclassified report on the reviews that are conducted is a
modest step towards that understanding.
Americans have the right to be informed that the Government
uses its authorities narrowly, responsibly, and exclusively for
foreign intelligence purposes. We will continue to strive to
provide this assurance to our citizens. While the amendments
were not adopted, they reflect several of the factors that were
considered by this committee in the course of reaching its bi-
partisan 17-0 vote in favor of the bill. This vote reflects a
tradition of fully considering the tensions between security
and civil liberties when crafting intelligence related
legislation.
Jan Schakowsky.
Luis Gutierrez.
