Calendar No. 235
113th Congress Report
SENATE
1st Session 113-119
======================================================================
FISA IMPROVEMENTS ACT OF 2013
_______
November 12, 2013.--Ordered to be printed
_______
Mrs. Feinstein, from the Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1631]
The Select Committee on Intelligence, having considered an
original bill (S. 1631) to consolidate the congressional
oversight provisions of the Foreign Intelligence Surveillance
Act of 1978 and for other purposes, reports favorably thereon
and recommends that the bill do pass.
BACKGROUND AND NEED FOR LEGISLATION
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. Since 2006, a central focus of
that oversight has included the Executive branch's use of
Section 215 of the USA PATRIOT Act (Section 501 of FISA) to
conduct bulk collection of ``call data records'' that contain
metadata concerning domestic and international telephone calls,
including the numbers dialed, as well as the time, date, and
duration of the calls, but not the content of the calls.
The Committee has not been alone in its oversight of this
telephone metadata program. The Senate Judiciary Committee, as
well as the Committee on the Judiciary and the Permanent Select
Committee on Intelligence of the House of Representatives, also
has received regular reports and briefings on the program. In
addition, information concerning the bulk telephone metadata
program has been made available to every member of the Senate
prior to the reauthorization of Section 215, most recently in
2011.
As the Committee has reauthorized the business records
provision in the past, it has found the program to be an
effective counterterrorism tool and one that was determined by
the Department of Justice in two Administrations and by at
least fifteen different judges serving on the Foreign
Intelligence Surveillance Court (FISC) to be lawful. In
hearings and in mark-ups, the Committee has discussed the
program and determined on a strong bipartisan basis that the
legal authorities supporting the program should be
reauthorized.
Through the Committee's oversight of the program, the
Committee has been made aware of instances of inadvertent non-
compliance with the law or other policies and procedures
governing the telephone metadata program. Where such incidents
have arisen, they have been the result of human error or
technical defect--not intentional abuse--and have been promptly
reported and remedied. Further, the Committee has performed
extensive oversight of such incidents to help ensure necessary
measures were taken to correct the deficiencies that gave rise
to the compliance incidents. It remains the case that, through
seven years of oversight of this metadata program under Section
215, the Committee has not identified a single case in which a
government official engaged in a willful effort to circumvent
or violate Section 215 in the conduct of the bulk telephone
metadata program.
Similarly, the Committee has conducted oversight of the
implementation of Section 702 of FISA as established in 2008 by
the FISA Amendments Act. The Committee has found that
authority, which allows for the collection of the electronic
communications of non-U.S. Persons outside the United States
under procedures approved annually by the FISC, to be extremely
effective in producing foreign intelligence concerning
terrorists, weapons proliferators, and other adversaries. This
provision has been the subject of significant noncompliance
issues in the past, but as with the business records metadata
program, those issues have been uniformly unintentional, self-
identified, and reported to the Court and to Congress.
Until earlier this year, key aspects of both the business
records program and the Section 702 collection were highly
classified. Following the unprecedented leaks of classified
information, primarily of information relating to the National
Security Agency (NSA), by former NSA contractor Edward Snowden,
most of both programs' secrets have been declassified by the
Director of National Intelligence (DNI). The nature of the
leaks has caused public concern over the use of these
authorities, notwithstanding the care demonstrated by the NSA
to abide by the law and to protect U.S. Persons' private
information. This has led to a series of Committee hearings and
discussions over ways to add additional privacy protections and
transparency measures to FISA operations, while preserving the
operational effectiveness and flexibility of the programs,
resulting in this legislation. The Committee remains of the
view that these programs are effective, lawful, and subject to
significant oversight and review within the Intelligence
Community and by the Department of Justice, the FISC, and the
Congress.
This legislation includes a series of measures that make
improvements to FISA as well as other laws relating to
intelligence activities carried out by the Executive branch.
Specifically, these measures are intended to codify existing
privacy protections for the bulk telephone metadata program
that are currently established through Court-approved
minimization procedures or Executive branch policy. The
measures in this bill also seek to enhance those privacy
protections, where appropriate, by placing additional limits on
the telephone metadata program that do not reduce its
operational effectiveness. This legislation increases
transparency--to the public and to the Congress--concerning the
bulk telephone metadata program, as well as other aspects of
FISA, where it is possible to do so without compromising the
efficacy of intelligence activities undertaken pursuant to
FISA. Finally, the legislation also includes a series of
measures--to include making the appointment of the Director of
the NSA and the NSA Inspector General subject to Senate
confirmation and requiring periodic review of Attorney General-
approved procedures for intelligence collection under Executive
order 12333--that do not specifically concern FISA or the bulk
telephone metadata program, but which the Committee judges to
be appropriate measures for improving both the implementation
and oversight of intelligence activities.
Many of the measures contained in this legislation could
not have been enacted absent the declassification of lawful
intelligence activities that were, until recently, properly
classified, as to do so would have revealed the programs to our
adversaries and thereby compromised their effectiveness. These
measures are possible now only because the impacted
intelligence programs were publicly acknowledged following a
series of unauthorized disclosures; however, this bill should
not be construed as an endorsement of these unauthorized
disclosures. The Committee is dismayed by leaks that have
appeared in the media over the past several months concerning
the bulk telephone metadata program, as well as other
classified intelligence activities. The public disclosure of
these programs is not a principled act of civil disobedience
and has done grievous harm to the effectiveness of the programs
involved and, hence, the nation's security.
All intelligence professionals take an oath to protect this
country and sign non-disclosure agreements, which demand, at
times, that those trusted with classified information keep it
secret because to reveal it, whatever the motivation, is to
provide details of classified intelligence sources and methods
to our nation's enemies. This is true even when one disagrees
with the sources and methods involved or the appropriateness of
their classification. In fact, lawful means exist for true
government ``whistleblowers'' to bring information regarding
violations of law, or other concerns, to one of several
Inspectors General throughout the government, or to Congress.
These channels exist because, in a representative democracy, it
is not for any one person to decide on his own which
intelligence methods are wise or effective.
Recent media leaks concerning activities of the NSA have
not exposed government wrongdoing. Rather, they have revealed
to our adversaries lawful intelligence collection programs
directed against valid foreign intelligence targets. Up until
these programs were leaked, their implementation by NSA was an
example of how our democratic system of checks and balances is
intended to, and does, work. For example, the NSA telephone
metadata program was approved by federal judges and overseen by
Congress, where every member of the Senate had access to
information concerning how the programs were conducted and an
opportunity to voice objections and debate their efficacy. Some
members did voice objections, but a substantially greater
number weighed the relative privacy and security interests and
chose to support these programs.
The unauthorized disclosures concerning these lawful
programs have provided al-Qa'ida and others with a roadmap of
how to better evade U.S. intelligence collection. Some would
like to believe these disclosures have started a debate about
the propriety and efficacy of NSA surveillance programs but, in
fact, to a substantial degree, recent unauthorized disclosures
have ended the debate because, once disclosed, the programs at
issue become substantially less effective. The nation will
suffer as a result.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
The following is a section-by-section analysis and
explanation of the FISA Improvements Act of 2013 that is being
reported by the Committee.
Section 1. Short title
Section 1 states that the Act may be cited as the ``FISA
Improvements Act of 2013.''
Section 2. Supplemental procedures for acquisition of certain business
records for counterterrorism purposes
Section 2 clarifies the authority for bulk collection of
records containing non-content metadata concerning the wire or
electronic communications of United States persons. Section 2
adds two new provisions to Section 215 of the USA PATRIOT Act
(Section 501 of FISA). The first provision (Section 501(i) of
FISA) establishes a general prohibition on the use of Section
501 to acquire bulk wire or electronic communications records
that concern the communications of U.S. persons if the order
authorizing such collection does not name or otherwise identify
individuals or facilities.
The second provision (Section 501(j) of FISA) provides
authority for bulk collection otherwise prohibited by Section
501(i), provided the applicable Court order imposes certain
supplemental procedures. Under this section, the acquisition of
such records in bulk remains authorized under Section 215 of
the USA PATRIOT Act but is subject to supplemental procedures
that codify existing privacy protections for U.S. persons and
adds new protections. Specifically, an order directed to the
government authorizing the acquisition in bulk of wire or
electronic communication records concerning the communications
of United States persons from electronic communications service
providers: (1) shall not authorize the acquisition of the
content of any communication; (2) shall be effective for a
period not to exceed 90 days; (3) shall mandate government
retention of such records in accordance with Court-approved
security procedures; (4) shall restrict analysts from accessing
the data except to perform a query using a selector for which a
recorded determination has been made that there is a reasonable
articulable suspicion that the selector is associated with
international terrorism or activities in preparation therefor;
(5) shall require a record of each such determination and
query; (6) shall limit the number of government personnel who
can make such a determination or perform such a query; (7)
shall record automatically, and subsequently report, the number
of queries to Congress; (8) shall require the FISC to limit the
number of tiers of contacts (i.e., ``hops'') that an analyst
can receive in response to a query; (9) shall require that the
FISC receives a written record of each determination, and allow
for the Court to disapprove the determination, in which case
the Court may order remedial action; and (10) shall limit
retention of bulk metadata to five years, with a further
requirement of Attorney General-approval for queries of data
that is more than three years old.
The Committee believes that, to the greatest extent
practicable, all queries conducted pursuant to the authorities
established under this section should be performed by Federal
employees. Nonetheless, the Committee acknowledges that it may
be necessary in some cases to use contractors to perform such
queries. By using the term ``government personnel'' the
Committee does not intend to prohibit such contractor use.
Section 2 also requires additional reporting to both
Congress and the public concerning the Executive branch's use
of Section 215, to include reporting concerning the number of
targets and queries, as well as the number of investigative
leads and probable cause orders initiated as a result of the
telephone metadata program.
Section 3. Enhanced criminal penalties for unauthorized access to
collected data
Section 3 establishes criminal penalties in Title 18 of the
U.S. Code for unauthorized access to data repositories
containing information acquired by the United States pursuant
to an order of the FISC.
Section 4. Appointment of amicus curiae
Section 4 authorizes the FISC and the Foreign Intelligence
Surveillance Court of Review (FISCR) to appoint amicus curiae
to assist the Court in the consideration of applications that,
in the opinion of the Court, present a novel or significant
interpretation of the law.
Section 4 also requires the FISC and FISCR to designate one
or more individuals, possessing the necessary clearances, who
may be appointed to serve as amicus curiae.
Senators King, Collins, Warner, and Mikulski prepared this
provision as an amendment and it was incorporated into the bill
prior to markup.
Section 5. Consolidation of congressional oversight provisions under
the Foreign Intelligence Surveillance Act of 1978
Section 5 consolidates five existing reporting requirements
on FISA activities into a single semi-annual reporting
requirement. In addition, this section adds measures intended
to enhance overall transparency, to include measures intended
to increase the availability of reports on FISA that are
generated by the Executive branch to members of Congress not
serving on the intelligence or judiciary committees, as well as
measures intended to increase the availability of unclassified
information contained in those reports to the public. Under
this section, information previously required to be made public
will continue to be made public.
Section 6. Restrictions on querying the contents of certain
communications
Section 6 requires that the government document all queries
of data acquired pursuant to Section 702 of FISA that use a
U.S. Person's selector and provides that those queries may be
conducted only if the purpose of the query is to obtain foreign
intelligence information or information necessary to understand
foreign intelligence information or to assess its importance.
The section further requires that documentation of such queries
will be available for review by the Department of Justice,
appropriate Inspectors General, the FISC, and the Congress.
Section 6 does not limit the authority of law enforcement
agencies to conduct queries of data acquired pursuant to
Section 702 of FISA for law enforcement purposes.
This section recognizes the valid foreign intelligence need
to conduct queries that use a U.S. Person selector, but seeks
to ensure that appropriate limitations and oversight procedures
are in place.
The Committee believes that, to the greatest extent
practicable, all queries conducted pursuant to the authorities
established under this section should be performed by Federal
employees. Nonetheless, the Committee acknowledges that it may
be necessary in some cases to use contractors to perform such
queries. By using the term ``government personnel'' the
Committee does not intend to prohibit such contractor use.
Section 7. Temporary targeting of persons other than United States
persons traveling into the United States
Section 7 authorizes the government to continue collection
for a 72-hour transitional period, where the collection is
directed against a non-U.S. person target who travels into the
United States while the target is the subject of collection
that was lawfully initiated while the target was abroad. This
provision is intended to provide the government with a grace
period, to be used solely in exigent circumstances consistent
with the reasonableness requirement of the Fourth Amendment, to
enable the government to seek emergency authorization to
maintain, rather than terminate, coverage of the target while
such emergency authorization is sought. If a Court order is not
issued, all collection after the time the target is known to
have entered the U.S. must be deleted, unless the Attorney
General determines that the information indicates a threat of
death or serious bodily harm.
This provision responds to a gap in national security
authorities. Under current law, collection directed against a
lawful non-U.S. person target must terminate if that target is
determined to have entered the United States, even if that
target's presence in the country raises additional concerns.
This mandatory cessation of surveillance exists whether
coverage of the individual was authorized under Section 702 of
FISA or under Executive order 12333, and creates a gap in
coverage even where the government works expeditiously to
develop the probable cause need to invoke the emergency
procedures in FISA. Under this provision, collection directed
against a non-U.S. person target may continue for a 72-hour
period while the Executive branch seeks other surveillance
authorities--to include emergency employment of electronic
surveillance under Section 105(e) of FISA. The Committee
believes this situation is roughly analogous to the long-
standing emergency procedures in FISA, through which the
government, based on a finding of probable cause, can conduct
electronic surveillance on an individual while it seeks Court
approval.
Section 8. Confirmation of appointment of the Director of the National
Security Agency
Section 8 amends the National Security Agency Act of 1959
to provide that the Director of the NSA shall be appointed by
the President by and with the advice and consent of the Senate.
Under present law and practice, the President appoints the
Director of the NSA. The appointment has been indirectly
subject to confirmation through Senate confirmation of the
military officers who have been promoted into the position.
Section 8 will make explicit that the filling of this key
position in the Intelligence Community should be subject to
Senate confirmation.
The Committee has had a long-standing interest in ensuring
Senate confirmation of the Director of the NSA, and this
requirement has previously been supported by the Senate. The
Committee renews the requirement for Senate confirmation of the
Director of the NSA in this Act in light of NSA's critical role
in the national intelligence mission, particularly with respect
to activities that may raise privacy concerns.
Through advice and consent, the Senate can enable the
Congress to fulfill more completely its responsibility for
providing oversight of the intelligence activities of the
United States government and ensure that the NSA's
responsibilities and foreign intelligence activities receive
appropriate attention.
Section 8 does not alter the role of the Committee on Armed
Services of the Senate in reviewing and approving the promotion
or assignment of military officers. The Committee intends to
approve a separate Senate Resolution that would dictate the
roles of the Committee and the Armed Services Committee in
considering the nomination of a new Director of the NSA, with
the order of the committees' actions to be determined by
whether the nominee is a military officer.
Finally, the section makes clear that the requirement for
Senate confirmation applies prospectively. Therefore, the
Director of the NSA on the date of enactment will not be
affected by this section, which will apply initially to the
appointment and confirmation of his successor.
Section 9. Presidential appointment and Senate confirmation of the
Inspector General of the National Security Agency
Section 9 amends the Inspector General Act of 1978 (5
U.S.C. App.) to provide that the Inspector General of the NSA
shall be appointed by the President by and with the advice and
consent of the Senate. Under present law and practice, the
Director of the NSA appoints the NSA Inspector General.
The Inspector General of the NSA performs a critical role
in ensuring that the NSA carries out its national intelligence
mission in full compliance with the law and applicable policies
and regulations. By requiring Presidential appointment and
Senate confirmation of the NSA Inspector General, this
provision will ensure the NSA Inspector General operates
independently of the Director of the Agency in overseeing the
activities of the NSA, particularly with respect to activities
that may raise privacy concerns.
Senators Coats, Udall, Collins, Coburn, and Mikulski
prepared this provision as an amendment, and it was
incorporated into the bill prior to markup.
Section 10. Annual reports on violations of law or Executive order
Section 10 requires the DNI to report annually to the
congressional intelligence committees on violations of law or
Executive order by personnel of an element of the Intelligence
Community that were identified during the previous calendar
year. Under the National Security Act, the President is
required to keep the congressional intelligence committees
fully and currently informed of the intelligence activities of
the United States government. Nonetheless, the Committee has
determined that this annual reporting requirement is necessary
to better ensure that the intelligence oversight committees of
the House and Senate are made aware of violations of law or
Executive order, including, in particular, violations of
Executive order 12333 for activities not otherwise subject to
FISA.
Section 11. Periodic review of Intelligence Community procedures for
the acquisition, retention, and dissemination of intelligence
Section 11 mandates that the head of each element of the
Intelligence Community conduct a review at least every five
years of the Attorney General-approved procedures for
intelligence collection that each Intelligence Community
element is required to adopt pursuant to Section 2.3 of
Executive order 12333. The procedures required by Executive
order 12333 govern the handling of information concerning U.S.
persons in all intelligence activities, including those also
governed by FISA. It has come to the Committee's attention that
some intelligence agencies have not substantively modified or
updated their Attorney General-approved procedures in several
decades. As a result, the procedures in place today pre-date
advances in technology that have had a significant effect on
the conduct of intelligence activities and on the privacy and
civil liberties of U.S. persons. Further, it has come to the
attention of the Committee that at least one Intelligence
Community element does not have procedures in place. Section 11
reflects this Committee's belief that the adoption and periodic
review of Attorney General-approved procedures for intelligence
collection, which are required by Section 2.3 of Executive
order 12333, is a priority that the Intelligence Community
should work expeditiously to undertake.
Section 12. Privacy and Civil Liberties Oversight Board enhancements
relating to the Foreign Intelligence Surveillance Act
Section 12 requires notification to the Privacy and Civil
Liberties Oversight Board (PCLOB) of applications to the FISC
that contain a new or significant interpretation of law and
relate to efforts to protect the United States from terrorism.
It also permits the PCLOB to perform an assessment of those
applications. In addition, Section 12 directs the PCLOB to
conduct an annual review of the activities of the NSA related
to information collection under FISA. Finally, Section 12
provides for communications services and office space to
certain members of the PCLOB.
COMMITTEE ACTION
Votes on amendments to committee bill and this report
On October 29, 2013, a quorum being present, the Committee
met to consider the bill and amendments. The Committee took the
following actions:
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 unanimous consent, the Committee agreed to amend the
title of Section 3 of the bill to clarify more specifically
what activity it will criminalize.
By a vote of 7 ayes to 8 noes the Committee rejected an
amendment by Senator Rockefeller to establish a 3-year limit on
the retention of bulk metadata. The votes on the amendment in
person or by proxy were as follows: Chairman Feinstein--aye;
Senator Rockefeller--aye; Senator Wyden--aye; Senator
Mikulski--aye; Senator Udall--aye; Senator Warner--aye; Senator
Heinrich--aye; Senator King--no; Vice Chairman Chambliss--no;
Senator Burr--no; Senator Risch--no; Senator Coats--no; Senator
Rubio--no; Senator Collins--no; Senator Coburn--no.
By a vote of 10 ayes to 5 noes the Committee agreed to an
amendment by Senator Collins to enhance the role of the Privacy
and Civil Liberties Oversight Board in overseeing certain
intelligence activities authorized under FISA. The votes on the
amendment in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Mikulski--aye; Senator Udall--aye; Senator Warner--aye;
Senator Heinrich--aye; Senator King--aye; Vice Chairman
Chambliss--no; Senator Burr--no; Senator Risch--no; Senator
Coats--no; Senator Rubio--no; Senator Collins--aye; Senator
Coburn--aye.
By a vote of 4 ayes to 11 noes the Committee rejected an
amendment by Senator Wyden to express the intent of the
Committee to hold additional open hearings on FISA during the
2013 calendar year. The votes on the amendment in person or by
proxy were as follows: Chairman Feinstein--no; Senator
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--aye;
Senator Udall--aye; Senator Warner--no; Senator Heinrich--aye;
Senator King--no; Vice Chairman Chambliss--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Rubio--no;
Senator Collins--no; Senator Coburn--no.
By a vote of 6 ayes to 9 noes the Committee rejected an
amendment by Senator Coburn to eliminate restrictions on the
retention of bulk metadata. The votes on the amendment in
person or by proxy were as follows: Chairman Feinstein--no;
Senator Rockefeller--no; Senator Wyden--no; Senator Mikulski--
no; Senator Udall--no; Senator Warner--no; Senator Heinrich--
no; Senator King--no; Vice Chairman Chambliss--no; Senator
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator
Rubio--aye; Senator Collins--aye; Senator Coburn--aye.
By a vote of 3 ayes to 12 noes the Committee rejected an
amendment by Senator Udall to prohibit bulk collection of
business records under Section 215 of the USA PATRIOT Act. The
votes on the amendment in person or by proxy were as follows:
Chairman Feinstein--no; Senator Rockefeller--no; Senator
Wyden--aye; Senator Mikulski--no; Senator Udall--aye; Senator
Warner--no; Senator Heinrich--aye; Senator King--no; Vice
Chairman Chambliss--no; Senator Burr--no; Senator Risch--no;
Senator Coats--no; Senator Rubio--no; Senator Collins--no;
Senator Coburn--no.
By a vote of 15 ayes to 0 noes the Committee agreed to an
amendment by Senator King to require the Director of National
Intelligence to establish a technical procedure to record
automatically the aggregate number of queries of bulk metadata
and report that automatic recording to Congress on a quarterly
basis. The votes on the amendment in person or by proxy were as
follows: Chairman Feinstein--aye; Senator Rockefeller--aye;
Senator Wyden--aye; Senator Mikulski--aye; Senator Udall--aye;
Senator Warner--aye; Senator Heinrich--aye; Senator King--aye;
Vice Chairman Chambliss--aye; Senator Burr--aye; Senator
Risch--aye; Senator Coats--aye; Senator Rubio--aye; Senator
Collins--aye; Senator Coburn--aye.
By a vote of 7 ayes to 8 noes the Committee rejected an
amendment by Senator Wyden to require the public disclosure of
any decision of the FISC that concerns a violation of the
Constitution. The votes on the amendment in person or by proxy
were as follows: Chairman Feinstein--no; Senator Rockefeller--
no; Senator Wyden--aye; Senator Mikulski--aye; Senator Udall--
aye; Senator Warner--aye; Senator Heinrich--aye; Senator King--
aye; Vice Chairman Chambliss--no; Senator Burr--no; Senator
Risch--no; Senator Coats--no; Senator Rubio--no; Senator
Collins--aye; Senator Coburn--no.
By a vote of 3 ayes to 12 noes the Committee rejected an
amendment by Senator Wyden to substitute the text of the bill
with the text of S. 1551, the ``Intelligence Oversight and
Surveillance Reform Act.'' The votes on the amendment in person
or by proxy were as follows: Chairman Feinstein--no; Senator
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--no;
Senator Udall--aye; Senator Warner--no; Senator Heinrich--aye;
Senator King--no; Vice Chairman Chambliss--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Rubio--no;
Senator Collins--no; Senator Coburn--no.
By a vote of 7 ayes to 8 noes the Committee rejected an
amendment by Senator Heinrich to prohibit the collection of
bulk cell site location information. The votes on the amendment
in person or by proxy were as follows: Chairman Feinstein--no;
Senator Rockefeller--aye; Senator Wyden--aye; Senator
Mikulski--no; Senator Udall--aye; Senator Warner--aye; Senator
Heinrich--aye; Senator King--aye; Vice Chairman Chambliss--no;
Senator Burr--no; Senator Risch--no; Senator Coats--no; Senator
Rubio--no; Senator Collins--aye; Senator Coburn--no.
Vote to report the committee bill
On October 31, 2013, a quorum being present, the Committee
met to consider the bill, as amended. The Committee took the
following actions:
The Committee voted to report the bill, as amended, by a
vote of 11 ayes and 4 noes. The votes in person or by proxy
were as follows: Chairman Feinstein--aye; Senator Rockefeller--
aye; Senator Wyden--no; Senator Mikulski--aye; Senator Udall--
no; Senator Warner--aye; Senator Heinrich--no; Senator King--
aye; Vice Chairman Chambliss--aye; Senator Burr--aye; Senator
Risch--aye; Senator Coats--aye; Senator Rubio--aye; Senator
Collins--aye; Senator Coburn--no.
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, the
report to accompany it, or the classified schedule of
authorizations. The bill, report, and classified schedule 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 November
7, 2013, 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.
ADDITIONAL VIEWS OF SENATOR FEINSTEIN
The Intelligence Committee has conducted ongoing oversight
of FISA since its enactment in 1978. Through that oversight,
the Committee has been well aware of the implementation of FISA
authorities, to include those under the Business Records
provision (Section 215 of the USA PATRIOT Act and Section 501
of FISA) and the collection of electronic communications of
non-U.S. Persons outside of the United States as authorized by
Section 702 of FISA. That oversight has included among other
things briefings and written information that we have received
on the effectiveness of both programs, compliance issues that
emerged in 2009 (regarding telephony metadata) and 2011
(regarding Section 702), and the efforts of the National
Security Agency (NSA), the Department of Justice, and the
Foreign Intelligence Surveillance Court to faithfully execute
these programs under the Constitution and the law.
The Committee's review of these programs, as well as other
aspects of FISA and signals intelligence collection conducted
under Executive Order 12333, has been thorough and
longstanding, but it has intensified since the disclosure of
previously classified information through a series of press
accounts beginning in June of this year. The Committee has held
10 hearings during this period,\1\ plus numerous briefings and
meetings with government officials, privacy advocates, and
representatives of private sector companies.
---------------------------------------------------------------------------
\1\Since the initial press reports based on materials leaked by
Edward Snowden, the Committee has held hearings, briefings, and other
full Committee meetings on NSA FISA operations and related intelligence
activities on June 6, June 11, June 13, June 25, July 16, July 23,
September 19, September 24, September 26 (in open session), and October
10.
---------------------------------------------------------------------------
The information we have received in the past several months
has confirmed our previous understanding of these programs and
has convinced the Committee that acquisition of telephone call
records under the Business Records authority and the collection
of foreign electronic communications under Section 702 of FISA
should continue.
Prior to the unauthorized disclosures concerning the NSA's
telephone metadata program, the Committee had reviewed options
for shifting the operations of that program so as to keep the
telephone records with telecommunications providers rather than
acquire those records and store them at the NSA. The Committee
reevaluated those options following public acknowledgement of
the program by the Director of National Intelligence, but
reached the same conclusion that such an alternative
arrangement for the NSA program would not meet the Intelligence
Community's operational needs.
Separately, the Committee, through its regular oversight,
also has continued to receive briefings and intelligence
products related to the threat to the United States from
terrorism and the other national security challenges that
require effective signals intelligence collection. It is clear
that the threat has diversified, geographically around the
world and in the number of groups involved. It is also clear
that signals intelligence remains a critical part of our
intelligence collection on these threats. The need for these
intelligence programs, therefore, remains.
Intelligence gathered pursuant to the programs under
Section 215 of the USA PATRIOT Act and Section 702 of FISA,
together with NSA's other authorities, has enabled the
disruption of potential terrorist attacks at home and abroad. I
strongly believe that the telephone call records program under
the Section 215 Business Records provision reduces the chance
of another 9/11-type attack on our homeland. In fact, the call
records program has played a role in stopping roughly a dozen
terror incidents in the United States. And it continues to
contribute to our safety. To end the program at this time will
substantially increase the risk of another catastrophic attack
on the United States.
This is not a surveillance program. In the case of the call
records program, neither individuals nor their phone
conversations are being listened to. No one is being monitored.
The call records collected do not include names, locations or
other identifying characteristics of telephone calls. If the
government wants to get the content of any conversations, it
must obtain a warrant.
I recognize that for some people, any type of collection of
their phone records creates unease, particularly those who are
already distrustful of government. I also understand some
believe Congress has not done enough to restrain or oversee
these programs, though I strongly disagree with this view.
In approving the FISA Improvements Act of 2013, the
Committee sought to codify existing privacy protections already
mandated by the FISA Court and internal NSA regulations, and to
impose new ones. We also sought to increase public
understanding of the telephone metadata program, and to
increase oversight conducted by Congress, the FISA Court, and
the Privacy and Civil Liberties Oversight Board. These efforts
are described throughout this report.
I recognize that the reforms in this legislation will be
seen as insufficient by those who oppose the NSA's call records
program. I do, however, wish to address two specific points of
opposition with which I disagree.
LFirst, in reference to the call records program,
some people will say that the FISA Improvements Act codifies an
illegal program. It does not. This legislation does not provide
any new legislative authority with which the government may
acquire call records or any other information under Section
215--in fact, it narrows the existing authority for it. Section
2 of the FISA Improvements Act clearly prohibits the use of the
Business Records authority to collect bulk communication
records except through the supplemental procedures and
restrictions required by this section, as are detailed in this
report.
L As part of this previously classified program, in
2006, the Department of Justice sought approval from the FISA
Court to collect call records in large number under the Section
215 Business Records provision. The FISA Court approved that
request, and has reviewed and renewed that authority every 90
days for the past seven years. These renewal applications have
been approved by at least 15 different federal court judges
selected by the Chief Justice of the United States to serve on
this Court.
L The Department of Justice's legal analysis of the call
records program has recently been publicly released, as have
the two most recent opinions by the FISA Court as part of the
reauthorization of the program every 90 days.
L Critics of the program may dispute the legal
reasoning, but there should be no disagreement that this
program currently is authorized under law and has been
determined to be legal and Constitutional by the Executive and
Judicial branches.
LSecond, there is a contention that this
legislation authorizes the bulk collection of metadata from
electronic communications in addition to telephone metadata.
This is not the case.
L The Business Records provision under Section 501 of
FISA has not been used for bulk electronic metadata collection
(from emails, for example) in the past, and it is not the
intent to authorize such collection here. The Department of
Justice has previously sought and received authority to collect
metadata from electronic communications under a separate
provision--Section 402--of FISA (the pen register/trap and
trace provision.) This Internet metadata collection program
authorized by the FISA Court was discontinued in 2011 for
operational and resource reasons and has not been restarted.
L To the extent such bulk electronic metadata collection
is already permissible under Section 215, the effect of this
legislation is to limit that collection, not to authorize it.
Dianne Feinstein.
ADDITIONAL VIEWS OF SENATORS KING, COLLINS, WARNER AND MIKULSKI
Among other important provisions, this Bill contains two
amendments we authored and/or supported, and which provide
greater accountability, improved transparency and multiple
layers of oversight to the FISA process.
The Amicus Curiae (friend of the court) provision ensures
the Foreign Intelligence Surveillance Court has access to
independent expertise to help the Court oversee sensitive
intelligence programs while also safeguarding the
Constitution's Fourth Amendment privacy protections. This
provision enables the FISA Court to appoint an outside expert--
including individuals with backgrounds in privacy, civil
liberties, intelligence collection, telecommunications, or any
other area in which the Court determines it could benefit from
specialized legal or technical expertise--when a matter before
the Court involves a novel or significant interpretation of the
law that could have civil liberties implications.
The Privacy and Civil Liberties Oversight Board provision
provides an additional layer of oversight to the FISA process
by strengthening the oversight role of an independent,
respected body focused on privacy and civil liberties--separate
from other checks by all three branches of government including
Congress and the Judiciary.
We need to be able to show the American people that the
Intelligence Community can perform their primary function of
protecting national security while also enhancing Americans'
civil liberties and privacy protections guaranteed by the
Constitution.
Angus King.
Susan M. Collins.
Mark R. Warner.
Barbara A. Mikulski.
MINORITY VIEWS OF SENATORS WYDEN, UDALL AND HEINRICH
This bill represents the Senate Intelligence Committee's
response to the recent disclosures of large-scale domestic
surveillance programs, which were made earlier this year and
which have triggered a national debate about surveillance
policy. We are disappointed that this bill seems to work from
the premise that the problem with these programs is not that
they are overly intrusive, or that they were authorized under
an anachronistic legal process, or that their usefulness has
been greatly exaggerated, but rather that the law does not
authorize and describe them as clearly as it should. To address
this, this bill would codify the government's authority to
collect the phone records of huge numbers of law-abiding
Americans, and also to conduct warrantless searches for
individual Americans' phone calls and emails. We respectfully
but firmly disagree with this approach.
During the Intelligence Committee's consideration of this
bill, we offered a number of amendments that would have made
real reforms to US surveillance law and ensured the protection
of both American security and American liberties. One of these
amendments was a substitute amendment based on bipartisan
surveillance reform legislation--the Intelligence Oversight and
Surveillance Reform Act--that we have sponsored with a number
of other Senators. This legislation would end the bulk
collection of Americans' personal information while still
allowing intelligence agencies to obtain information that they
legitimately need for national security purposes.
Our legislation would also make a number of other needed
reforms as well--in particular, it would prohibit the
government from conducting warrantless ``back-door searches''
for Americans' communications under Section 702 of the Foreign
Intelligence Surveillance Act, and it would create a
Constitutional Advocate to present an opposing view when the
Foreign Intelligence Surveillance Court is considering major
questions of law or constitutional interpretation. In contrast,
the bill that the Intelligence Committee is now reporting would
give intelligence agencies wide latitude to conduct warrantless
searches for Americans' phone calls and emails under Section
702. And while it would allow the Foreign Intelligence
Surveillance Court to request amicus briefs from outside
parties, this would unfortunately not guarantee that both sides
of an argument would be presented to the Court on important
cases.
Senator Udall also offered an amendment that would have
specifically prohibited the dragnet collection of Americans'
phone records and other personal information. In our judgment,
collecting the phone records of huge numbers of law-abiding
Americans is a major intrusion on these Americans' privacy. As
Vice President Biden put it several years ago, ``I don't have
to listen to your phone calls to know what you're doing. If I
know every single phone call you made, I'm able to determine
every single person you talked to. I can get a pattern about
your life that is very, very intrusive.''
In our judgment, writing a law that permits the government
to engage in this massive dragnet collection as long as there
are rules about when officials can look at these phone records
does not begin to solve the problem of overly intrusive
domestic surveillance. When the Framers of the Constitution
wrote the Bill of Rights, they did not say that government
officials were allowed to issue general warrants as long as
they had rules about when they could look at the papers they
seized. They believed that government officials should not
seize the records of individual Americans without evidence of
wrongdoing, and they embodied this principle in the Fourth
Amendment.
In our view, the bulk collection of Americans' phone
records is particularly egregious because we have yet to see
evidence that it provides real value in protecting national
security. Despite our repeated requests, the NSA still has not
provided any examples of instances where they used this program
to review phone records that could not have been obtained using
a regular court order or emergency authorization and that
provided useful information about terrorist activities. If
government agencies identify a suspected terrorist, they should
absolutely go to the relevant phone companies to get that
person's phone records. But this can be done without collecting
the records of huge numbers of ordinary Americans.
Senator Heinrich also offered an amendment that would have
prohibited the NSA from collecting Americans' cell phone
location information in bulk, while still permitting the
government to acquire this information with an individualized
warrant. We are particularly disappointed that this amendment
was rejected by the Committee. NSA officials have testified
that they are not engaged in the bulk collection of Americans'
cell-site location information today, and have acknowledged
collecting ``samples'' of this data in the past, but they have
repeatedly declined to publicly answer questions from the three
of us and other Senators about whether they have previously
collected or made plans to collect this information in bulk,
and they have specifically said that the NSA could collect this
information in bulk in the future. By rejecting the Heinrich
amendment and still approving the underlying bill, the
Intelligence Committee has effectively voiced support for
giving the executive branch the authority to turn the cell
phone of every man, woman, and child in America into a tracking
device. We strenuously disagree with this approach and we will
continue to work to ensure that Americans' daily movements are
not tracked without evidence of wrongdoing.
While we have served on the Intelligence Committee for
varying lengths of time, all three of us can attest that our
nation's intelligence professionals are overwhelmingly
dedicated and patriotic men and women who make real sacrifices
to help keep our country safe and free. We believe that they
should be able to do their jobs secure in the knowledge that
their agencies have the trust and confidence of the American
people. This trust has been undermined by overly intrusive
domestic surveillance programs and misleading statements made
by senior officials over a period of many years. The way to
rebuild this public trust is to reform surveillance law and end
the dragnet surveillance of ordinary Americans in a way that
preserves intelligence agencies' ability to collect information
that is actually necessary for the preservation of American
security, and we will continue to work with our Senate
colleagues to achieve this goal.
Ron Wyden.
Mark Udall.
Martin Heinrich.
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.
