[Congressional Record Volume 158, Number 168 (Thursday, December 27, 2012)]
[Senate]
[Pages S8452-S8454]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3435. Mr. MERKLEY (for himself, Mr. Lee, Mr. Coons, Mr. Wyden, Mr. 
Franken, Mrs. Shaheen, Mr. Tester, and Mr. Durbin) proposed an 
amendment to the bill H.R. 5949, to extend the FISA Amendments Act of 
2008 for five years; as follows:

       At the appropriate place, insert the following:

     SEC. _. DISCLOSURE OF DECISIONS, ORDERS, AND OPINIONS OF THE 
                   FOREIGN INTELLIGENCE SURVEILLANCE COURT.

       (a) Findings.--Congress finds the following:
       (1) Secret law is inconsistent with democratic governance. 
     In order for the rule of law to prevail, the requirements of 
     the law must be publicly discoverable.
       (2) The United States Court of Appeals for the Seventh 
     Circuit stated in 1998 that the ``idea of secret laws is 
     repugnant''.
       (3) The open publication of laws and directives is a 
     defining characteristic of government of the United States. 
     The first Congress of the United States mandated that every 
     ``law, order, resolution, and vote [shall] be published in at 
     least three of the public newspapers printed within the 
     United States''.
       (4) The practice of withholding decisions of the Foreign 
     Intelligence Surveillance Court is at odds with the United 
     States tradition of open publication of law.
       (5) The Foreign Intelligence Surveillance Court 
     acknowledges that such Court has issued legally significant 
     interpretations of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) that are not accessible to 
     the public.
       (6) The exercise of surveillance authorities under the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.), as interpreted by secret court opinions, 
     potentially implicates the communications of United States 
     persons who are necessarily unaware of such surveillance.
       (7) Section 501 of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1861), as amended by section 215 of 
     the USA PATRIOT Act (Public Law 107-56; 115 Stat. 287), 
     authorizes the Federal Bureau of Investigation to require the 
     production of ``any tangible things'' and the extent of such 
     authority, as interpreted by secret court opinions, has been 
     concealed from the knowledge and awareness of the people of 
     the United States.
       (8) In 2010, the Department of Justice and the Office of 
     the Director of National Intelligence established a process 
     to review and declassify opinions of the Foreign Intelligence 
     Surveillance Court, but more than two years later no 
     declassifications have been made.
       (b) Sense of Congress.--It is the sense of Congress that 
     each decision, order, or opinion issued by the Foreign 
     Intelligence Surveillance Court or the Foreign Intelligence 
     Surveillance Court of Review that includes significant 
     construction or interpretation of section 501 or section 702 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1861 and 1881a) should be declassified in a manner 
     consistent with the protection of national security, 
     intelligence sources and methods, and other properly 
     classified and sensitive information.
       (c) Requirement for Disclosures.--
       (1) Section 501.--
       (A) In general.--Section 501 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1861) is amended by 
     adding at the end the following:
       ``(i) Disclosure of Decisions.--
       ``(1) Decision defined.--In this subsection, the term 
     `decision' means any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of this section.
       ``(2) Requirement for disclosure.--Subject to paragraphs 
     (3) and (4), the Attorney General shall declassify and make 
     available to the public--
       ``(A) each decision that is required to be submitted to 
     committees of Congress under section 601(c), not later than 
     45 days after such opinion is issued; and
       ``(B) each decision issued prior to the date of the 
     enactment of the ____ Act that was required to be submitted 
     to committees of Congress under section 601(c), not later 
     than 180 days after such date of enactment.
       ``(3) Unclassified summaries.--Notwithstanding paragraph 
     (2) and subject to paragraph (4), if the Attorney General 
     makes a determination that a decision may not be declassified 
     and made available in a manner that protects the national 
     security of the United States, including methods or sources 
     related to national security, the Attorney General shall 
     release an unclassified summary of such decision.
       ``(4) Unclassified report.--Notwithstanding paragraphs (2) 
     and (3), if the Attorney General makes a determination that 
     any decision may not be declassified under paragraph (2) and 
     an unclassified summary of such decision may not be made 
     available under paragraph (3), the Attorney General shall 
     make available to the public an unclassified report on the 
     status of the internal deliberations and process regarding 
     the declassification by personnel of Executive branch of such 
     decisions. Such report shall include--
       ``(A) an estimate of the number of decisions that will be 
     declassified at the end of such deliberations; and
       ``(B) an estimate of the number of decisions that, through 
     a determination by the Attorney General, shall remain 
     classified to protect the national security of the United 
     States.''.
       (2) Section 702.--Section 702(l) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is 
     amended by adding at the end the following:
       ``(4) Disclosure of decisions.--
       ``(A) Decision defined.--In this paragraph, the term 
     `decision' means any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of this section.
       ``(B) Requirement for disclosure.--Subject to subparagraphs 
     (C) and (D), the Attorney General shall declassify and make 
     available to the public--
       ``(i) each decision that is required to be submitted to 
     committees of Congress under section 601(c), not later than 
     45 days after such opinion is issued; and
       ``(ii) each decision issued prior to the date of the 
     enactment of the ____ Act that was required to be submitted 
     to committees of

[[Page S8453]]

     Congress under section 601(c), not later than 180 days after 
     such date of enactment.
       ``(C) Unclassified summaries.--Notwithstanding subparagraph 
     (B) and subject to subparagraph (D), if the Attorney General 
     makes a determination that a decision may not be declassified 
     and made available in a manner that protects the national 
     security of the United States, including methods or sources 
     related to national security, the Attorney General shall 
     release an unclassified summary of such decision.
       ``(D) Unclassified report.--Notwithstanding subparagraphs 
     (B) and (C), if the Attorney General makes a determination 
     that any decision may not be declassified under subparagraph 
     (B) and an unclassified summary of such decision may not be 
     made available under subparagraph (C), the Attorney General 
     shall make available to the public an unclassified report on 
     the status of the internal deliberations and process 
     regarding the declassification by personnel of Executive 
     branch of such decisions. Such report shall include--
       ``(i) an estimate of the number of decisions that will be 
     declassified at the end of such deliberations; and
       ``(ii) an estimate of the number of decisions that, through 
     a determination by the Attorney General, shall remain 
     classified to protect the national security of the United 
     States.''.
                                 ______
                                 
  SA 3436. Mr. PAUL (for himself and Mr. Lee) proposed an amendment to 
the bill H.R. 5949, to extend the FISA Amendments Act of 2008 for five 
years; as follows:

       At the appropriate place, insert the following:

     SEC. ___. FOURTH AMENDMENT PRESERVATION AND PROTECTION ACT OF 
                   2012.

       (a) Short Title.--This section may be cited as the ``Fourth 
     Amendment Preservation and Protection Act of 2012''.
       (b) Findings.--Congress finds that the right under the 
     Fourth Amendment to the Constitution of the United States of 
     the people to be secure in their persons, houses, papers, and 
     effects against unreasonable searches and seizures is 
     violated when the Federal Government or a State or local 
     government acquires information voluntarily relinquished by a 
     person to another party for a limited business purpose 
     without the express informed consent of the person to the 
     specific request by the Federal Government or a State or 
     local government or a warrant, upon probable cause, supported 
     by oath or affirmation, and particularly describing the place 
     to be searched, and the persons or things to be seized.
       (c) Definition.--In this section, the term ``system of 
     records'' means any group of records from which information 
     is retrieved by the name of the individual or by some 
     identifying number, symbol, or other identifying particular 
     associated with the individual.
       (d) Prohibition.--
       (1) In general.--Except as provided in paragraph (2), the 
     Federal Government and a State or local government is 
     prohibited from obtaining or seeking to obtain information 
     relating to an individual or group of individuals held by a 
     third-party in a system of records, and no such information 
     shall be admissible in a criminal prosecution in a court of 
     law.
       (2) Exception.--The Federal Government or a State or local 
     government may obtain, and a court may admit, information 
     relating to an individual held by a third-party in a system 
     of records if--
       (A) the individual whose name or identification information 
     the Federal Government or State or local government is using 
     to access the information provides express and informed 
     consent to the search; or
       (B) the Federal Government or State or local government 
     obtains a warrant, upon probable cause, supported by oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.
                                 ______
                                 
  SA 3437. Mr. LEAHY (for himself, Mr. Durbin, Mr. Franken, Mrs. 
Shaheen, Mr. Akaka, and Mr. Coons) proposed an amendment to the bill 
H.R. 5949, to extend the FISA Amendments Act of 2008 for five years; as 
follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FAA Sunsets Extension Act of 
     2012''.

     SEC. 2. EXTENSION OF FISA AMENDMENTS ACT OF 2008 SUNSET.

       (a) Extension.--Section 403(b)(1) of the FISA Amendments 
     Act of 2008 (Public Law 110-261; 50 U.S.C. 1881 note) is 
     amended by striking ``December 31, 2012'' and inserting 
     ``June 1, 2015''.
       (b) Technical and Conforming Amendments.--Section 403(b)(2) 
     of such Act (Public Law 110-261; 122 Stat. 2474) is amended 
     by striking ``December 31, 2012'' and inserting ``June 1, 
     2015''.
       (c) Orders in Effect.--Section 404(b)(1) of such Act 
     (Public Law 110-261; 50 U.S.C. 1801 note) is amended in the 
     heading by striking ``December 31, 2012'' and inserting 
     ``June 1, 2015''.

     SEC. 3. INSPECTOR GENERAL REVIEWS.

       (a) Agency Assessments.--Section 702(l)(2) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)(2)) 
     is amended--
       (1) in the matter preceding subparagraph (A), by striking 
     ``authorized to acquire foreign intelligence information 
     under subsection (a)'' and inserting ``with targeting or 
     minimization procedures approved under this section'';
       (2) in subparagraph (C), by inserting ``United States 
     persons or'' after ``later determined to be''; and
       (3) in subparagraph (D)--
       (A) in the matter preceding clause (i), by striking ``such 
     review'' and inserting ``review conducted under this 
     paragraph'';
       (B) in clause (ii), by striking ``and'' at the end;
       (C) by redesignating clause (iii) as clause (iv); and
       (D) by inserting after clause (ii), the following:
       ``(iii) the Inspector General of the Intelligence 
     Community; and''.
       (b) Inspector General of the Intelligence Community 
     Review.--Section 702(l) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is amended--
       (1) by redesignating paragraph (3) as paragraph (4); and
       (2) by inserting after paragraph (2) the following:
       ``(3) Inspector general of the intelligence community 
     review.--
       ``(A) In general.--The Inspector General of the 
     Intelligence Community is authorized to review the 
     acquisition, use, and dissemination of information acquired 
     under subsection (a) in order to review compliance with the 
     targeting and minimization procedures adopted in accordance 
     with subsections (d) and (e) and the guidelines adopted in 
     accordance with subsection (f), and in order to conduct the 
     review required under subparagraph (B).
       ``(B) Mandatory review.--The Inspector General of the 
     Intelligence Community shall review the procedures and 
     guidelines developed by the intelligence community to 
     implement this section, with respect to the protection of the 
     privacy rights of United States persons, including--
       ``(i) an evaluation of the limitations outlined in 
     subsection (b), the procedures approved in accordance with 
     subsections (d) and (e), and the guidelines adopted in 
     accordance with subsection (f), with respect to the 
     protection of the privacy rights of United States persons; 
     and
       ``(ii) an evaluation of the circumstances under which the 
     contents of communications acquired under subsection (a) may 
     be searched in order to review the communications of 
     particular United States persons.
       ``(C) Consideration of other reviews and assessments.--In 
     conducting a review under subparagraph (B), the Inspector 
     General of the Intelligence Community should take into 
     consideration, to the extent relevant and appropriate, any 
     reviews or assessments that have been completed or are being 
     undertaken under this section.
       ``(D) Report.--Not later than December 31, 2014, the 
     Inspector General of the Intelligence Community shall submit 
     a report regarding the reviews conducted under this paragraph 
     to--
       ``(i) the Attorney General;
       ``(ii) the Director of National Intelligence; and
       ``(iii) consistent with the Rules of the House of 
     Representatives, the Standing Rules of the Senate, and Senate 
     Resolution 400 of the 94th Congress or any successor Senate 
     resolution--

       ``(I) the congressional intelligence committees; and
       ``(II) the Committees on the Judiciary of the House of 
     Representatives and the Senate.

       ``(E) Public reporting of findings and conclusions.--In a 
     manner consistent with the protection of the national 
     security of the United States, and in unclassified form, the 
     Inspector General of the Intelligence Community shall make 
     publicly available a summary of the findings and conclusions 
     of the review conducted under subparagraph (B).''.

     SEC. 4. ANNUAL REVIEWS.

       Section 702(l)(4)(A) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1881a(l)(4)(A)), as 
     redesignated by section 3(b)(1), is amended--
       (1) in the matter preceding clause (i)--
       (A) in the first sentence--
       (i) by striking ``conducting an acquisition authorized 
     under subsection (a)'' and inserting ``with targeting or 
     minimization procedures approved under this section''; and
       (ii) by striking ``the acquisition'' and inserting 
     ``acquisitions under subsection (a)''; and
       (B) in the second sentence, by striking ``The annual 
     review'' and inserting ``As applicable, the annual review''; 
     and
       (2) in clause (iii), by inserting ``United States persons 
     or'' after ``later determined to be''.
                                 ______
                                 
  SA 3438. Mr. WYDEN (for himself, Mr. Udall of Colorado, Mr. Lee, Mr. 
Durbin, Mr. Merkley, Mr. Udall of New Mexico, Mr. Begich, Mr. Franken, 
Mr. Webb, Mrs. Shaheen, Mr. Tester, Mr. Bingaman, and Mr. Lautenberg) 
submitted an amendment intended to be proposed by him to the bill H.R. 
5949, to extend the FISA Amendments Act of 2008 for five years; which 
was ordered to lie on the table.

       At the appropriate place, insert the following:

[[Page S8454]]

     SEC. _. CLARIFICATION ON PROHIBITION ON SEARCHING OF 
                   COLLECTIONS OF COMMUNICATIONS OF UNITED STATES 
                   PERSONS.

       Section 702 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1881a) is amended--
       (1) in subsection (b), by redesignating paragraphs (1) 
     through (5) as subparagraphs (A) through (E), respectively, 
     and indenting such subparagraphs, as so redesignated, an 
     additional two ems from the left margin;
       (2) by striking ``An acquisition'' and inserting the 
     following:
       ``(1) In general.--An acquisition''; and
       (3) by adding at the end the following:
       ``(2) Clarification on prohibition on searching of 
     collections of communications of united states persons.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     no officer or employee of the United States may conduct a 
     search of a collection of communications acquired under this 
     section in an effort to find communications of a particular 
     United States person (other than a corporation).
       ``(B) Concurrent authorization and exception for emergency 
     situations.--Subparagraph (A) does not apply to a search for 
     communications related to a particular United States person 
     if--
       ``(i) such United States person is the subject of an order 
     or emergency authorization authorizing electronic 
     surveillance or physical search under section 105, 304, 703, 
     704, or 705, or title 18, United States Code, for the 
     effective period of that order;
       ``(ii) the entity carrying out the search has a reasonable 
     belief that the life or safety of such United States person 
     is threatened and the information is sought for the purpose 
     of assisting that person; or
       ``(iii) such United States person has consented to the 
     search.''.

                          ____________________