FISA Amendments Reauthorization Act - H.R.4478 (S.139)
Summary
The House Amendment reauthorizes title VII of the Foreign Intelligence Surveillance Act (FISA) for six years to enhance surveillance authorities, and to provide additional transparency and reporting requirements and privacy safeguards. Specifically, the legislation:
- Requires Section 702 query procedures, which must be reviewed annually by the Foreign Intelligence Surveillance Court (FISC) to ensure they are consistent with the Fourth Amendment;
- Requires the publication of Section 702 minimization procedures;
- Adds a probable cause-based order requirement for the FBI to view Section 702 content that was responsive to a U.S. person query conducted during a criminal investigation not related to the national security;
- Requires the Inspector General of the Department of Justice to review the FBI’s Section 702 query practices, including the implementation and interpretation of the FBI’s query procedures;
- Provides that any Section 702 information concerning a U.S. person cannot be used against that U.S. person in a criminal proceeding unless the FBI first obtained an order from the FISC to view the Section 702 information during a non-national security criminal investigation, or the Attorney General determines the use of the information is for a crime related to the national security or the criminal proceeding involves one of the specified severe crimes;
- Temporarily ends the NSA’s “about communications” collection and requires the government to gain FISC approval for new “about communication” procedures, as well as brief Congress, with a waiting period of 30 days, before resuming the “about communications”;
- Improves the Privacy and Civil Liberties Oversight Board (PCLOB) to ensure the board can operate in the absence of a Chairman;
- Requires the appointment of Privacy and Civil Liberties Officers at the NSA and FBI;
- Includes Whistleblower protections for contractors of the Intelligence Community;
- Increases the penalty for the unauthorized removal and retention of classified documents or material from one year to five years; and
- Requires a GAO study on the classification system and protection of classified information.
A section-by-section of the bill can be found here.
Background
The Foreign Intelligence Surveillance Act (FISA), enacted in 1978, provides a statutory framework by which government agencies may, when gathering foreign intelligence information, obtain authorization to conduct electronic surveillance or physical searches on foreign powers or agents of foreign powers, utilize pen registers and trap and trace devices, or access specified business records and other tangible things. Authorization for such activities is typically obtained by court order from the FISC, a specialized court created by FISA to act as a neutral judicial decision maker in the context of activities authorized by the statute. Following the September 11, 2001 terrorist attacks, Congress enacted the USA PATRIOT Act, which amended FISA and other statutes to expand the scope of federal authority for intelligence gathering. The law has since been reauthorized and revised.
In 2008, Congress enacted the FISA Amendments Act (P.L. 110-261). The FISA Amendments Act added title VII to FISA, which updated FISA in the wake of changing communications technology since 1978. Title VII of FISA includes Section 702, which permits the Government to target non-U.S. people located outside the United States (i.e. individuals not afforded Fourth Amendment protections) with the assistance of electronic communication service providers. Section 702 is implemented via the use of Attorney General and Director of National Intelligence certifications, targeting procedures, and minimization procedures, all of which are reviewed and approved annually by the FISC. The FISA Amendments Act was first reauthorized for five years in 2012 without any changes to the law.
In 2015, Congress enacted the USA FREEDOM Act (P.L. 114-23) to reauthorize and amend various portions of FISA. While most of the amendments dealt with portions of FISA that were unrelated to Section 702, the act did include authority to continue surveillance of a non-U.S. person for 72 hours after the target is reasonably believed to be within the United States, but only if a lapse in surveillance of the target would pose a threat of death or serious bodily harm. A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that period. The 2015 law also ended the collection of bulk data, prohibited the indiscriminate collection of metadata, created a panel of experts to advise the FISC on matters of privacy and civil liberties, and increased transparency by requiring the declassification of all significant opinions of the FISA Court.
The FISA Amendments Act authorities are set to expire on January 19, 2017.
Cost
The Congressional Budget Office (CBO) estimates enacting this legislation would cost $1 million over the 2018-2022 period for various operations of the Foreign Intelligence Surveillance Court and an additional $1 million is 2018 and $2 million over the 2018-2022 period on reporting requirements.
MINORITY VIEWS
Section 702 of the Foreign Intelligence Surveillance Act is a critical Intelligence Community (IC) tool. We will continue to work to reauthorize and reform this authority in a way which will enhance privacy and transparency, while maintaining operational effectiveness. We regret the Majority's inclusion, in must-pass legislation to reauthorize Section 702, an unnecessary and politicized provision which purports to address deficiencies in the process for ``unmasking'' U.S. person identity information contained in intelligence reports. Of greatest concern is the creation of special review and congressional notification procedures for requests made to the IC during a presidential transition. These would be triggered when the sought information, if ``unmasked,'' might identify personnel of a presidential or vice presidential transition team. This language is intended to bolster the false claim that, during the 2016 presidential transition and before, officials of the last Administration surveilled Trump Tower, and sought identifying information contained in intelligence reports for improper or even illegal purposes, including to leak classified information to journalists. The Committee has seen no evidence, heard no testimony, and has no grounds for believing that senior officials of the Obama Administration--or any Administration--abused the identity request process. And, although the topics of Section 702 and ``unmasking'' frequently have been conflated, the Committee also has seen no evidence that U.S. person identity information incidentally collected pursuant to Section 702 has been improperly ``unmasked.'' The Chairman's own inquiry has yielded no evidence that IC professionals who adjudicate identity requests acted inappropriately. Nonetheless, the IC is taking action to further heighten privacy protection. On the day before Committee markup of the Section 702 reauthorization, the Director of National Intelligence pledged to strengthen existing procedures governing identity requests--including with regard to presidential transitions--and to seek greater harmonization of those procedures across the IC. Given this commitment, there is simply no policy reason to insist on including the presidential transition language in Section 702's reauthorization. During markup, Minority Members expressed different views about the sorts of additional privacy safeguards that Congress ought to establish as a condition for Section 702's reauthorization. We each believe, however, that legislation so vital to national security cannot include language obviously meant to further a partisan agenda. In the short time that remains before Section 702's expiration at the end of this month, we will work to remove the offending ``unmasking'' language, and to add privacy and transparency safeguards without diminishing Section 702's proven capability to protect national security. Adam B. Schiff. James A. Himes. Terri A. Sewell. Andre Carson. Jackie Speier. Mike Quigley. Eric Swalwell. Joaquin Castro.
Democratic Whip Steny Hoyer:
This bill would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) for a period of six years. That Section, and the rest of Title VII of FISA, expires on January 19, 2018.
Section 702 enables the Intelligence Community to conduct surveillance on foreigners located outside the U.S. for the purpose of acquiring intelligence information. This acquisition must be conducted pursuant to a court order approving a certification and accompanying targeting and minimization procedures.
The bill includes several reforms intended to address privacy concerns regarding Section 702, including requiring the FBI to obtain a court order before it may review the results of US person queries performed in the course of criminal investigations unrelated to national security. The bill also imposes restrictions on how information concerning US persons may be used in prosecutions, and directs the DOJ inspector General to study FBI query practices.
Among other privacy concerns, opponents of the bill are concerned that the manager’s amendment is too narrow and that the warrant requirement does not capture queries made during the pre-investigative phase.
This text also reflects changes made to address concerns raised by Democratic members and others, by: 1) removing all “unmasking” language; (2) revising a key definition, to make clear that the bill expands no existing surveillance authorities; (3) and removing language authorizing surveillance of “international malicious cyber actors.”
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