[House Report 112-645]
[From the U.S. Government Publishing Office]


112th Congress                                            Rept. 112-645
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
            FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012

                                _______
                                

 August 2, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                 DISSENTING VIEWS AND ADDITIONAL VIEWS

                        [To accompany H.R. 5949]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 5949) to extend the FISA Amendments Act of 2008 for 
five years, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page

The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     5
Committee Oversight Findings.....................................     9
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Performance Goals and Objectives.................................    11
Advisory on Earmarks.............................................    11
Section-by-Section Analysis......................................    12
Changes in Existing Law Made by the Bill, as Reported............    12
Dissenting Views.................................................    13
Additional Views.................................................    21

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``FISA Amendments Act Reauthorization 
Act of 2012''.

SEC. 2. FIVE-YEAR EXTENSION OF FISA AMENDMENTS ACT OF 2008.

  (a) Extension.--Section 403(b) of the FISA Amendments Act of 2008 
(Public Law 110-261; 122 Stat. 2474) is amended--
          (1) in paragraph (1), by striking ``December 31, 2012'' and 
        inserting ``December 31, 2017''; and
          (2) in paragraph (2) in the material preceding subparagraph 
        (A), by striking ``December 31, 2012'' and inserting ``December 
        31, 2017''.
  (b) Conforming Amendment.--The heading of section 404(b)(1) of the 
FISA Amendments Act of 2008 (Public Law 110-261; 122 Stat. 2476) is 
amended by striking ``december 31, 2012'' and inserting ``december 31, 
2017''.

                          Purpose and Summary

    The purpose of this bill is to extend for 5 years the FISA 
Amendments Act of 2008.

                Background and Need for the Legislation

    In 2006 and 2007, then-Director of National Intelligence 
Admiral Mike McConnell explained to Congress that due to recent 
FISA court decisions, the government was forced to devote 
substantial resources to obtaining court approvals--based on a 
showing of probable cause--to conduct surveillance against 
terrorists located overseas in some circumstances. This is 
contrary to what Congress intended when it enacted the Foreign 
Intelligence Surveillance Act (FISA) in 1978 and had come about 
due to changes in telecommunication technology. Admiral 
McConnell stated that the Intelligence Community was not 
collecting approximately two-thirds of the foreign intelligence 
information that it collected prior to legal interpretations 
that required the government to obtain individualized FISA 
court orders for overseas surveillance.
    On July 10, 2008, President Bush signed into law the FISA 
Amendments Act of 2008, which passed with a bipartisan majority 
of Congress and broad support from the intelligence community. 
The Act allows intelligence professionals to more quickly and 
effectively monitor terrorist communications, while protecting 
the civil liberties of Americans. Among other things, the law 
accomplishes the following:

         LEnsures that the intelligence community has 
        the tools it needs to determine who terrorists are 
        communicating with, what they are saying and what they 
        may be planning.

         LProvides critical authorities that allow the 
        intelligence community to acquire foreign intelligence 
        information by targeting foreign persons reasonably 
        believed to be outside the United States.

         LPreserves and provides new civil liberties 
        protections for Americans.

         LRequires court orders to target Americans for 
        foreign intelligence surveillance, no matter where they 
        are, and requires court review of the procedures used 
        to protect information about Americans.

    Specifically, the new law authorizes the targeting of non-
U.S. persons overseas to acquire foreign intelligence 
information, subject to specific targeting and minimization 
procedures that are reviewed by the FISA Court.
    The Act permits the Attorney General and Director of 
National Intelligence to obtain an annual certification from 
the Foreign Intelligence Surveillance Court (FISC) to target 
foreign persons reasonably believed to be located outside the 
U.S. to acquire foreign intelligence information. Under exigent 
circumstances, the Attorney General and Director of National 
Intelligence may immediately authorize such targeting based 
upon a determination that without immediate implementation of 
an authorization, intelligence important to the national 
security of the United States may be lost or not timely 
acquired and time does not permit the issuance of an order.
    The Act strengthens protections for U.S. citizens by 
requiring the government to obtain an order from the FISC to 
target them outside the United States to acquire foreign 
intelligence information. Prior to 2008, targeting of U.S. 
persons outside the U.S. was governed by Executive Order 12333, 
which allowed the Attorney General to certify the targeting of 
U.S. persons overseas.
    The Act expands congressional oversight with a semi-annual 
report to Congress from the Administration on certifications or 
orders obtained under the Act, compliance reviews, and 
incidents of noncompliance. The Act amends an existing 
reporting requirement that requires the Attorney General to 
submit to Congress a copy of any FISC order, opinion, or 
decision, and the accompanying pleadings, briefs, and other 
memoranda of law when the court's decision includes 
``significant construction or interpretation of any provision'' 
of FISA. This expands the amount of background and supporting 
material that the Committee will receive in connection with a 
significant decision by the FISC. Prior to enactment of the 
FISA Amendments Act in 2008, only ``decisions and opinions'' 
containing significant construction or interpretation of FISA 
were required to be submitted to Congress.
    At a hearing of the Subcommittee on Crime, Terrorism, and 
Homeland Security, Mr. Kenneth Wainstein, former head of the 
National Security Division of the Justice Department, testified 
that:

          In crafting this law, however, Congress recognized 
        that it had to balance the need for a judicial review 
        process for domestic surveillance against the 
        government's need to freely conduct surveillance 
        overseas. It accomplished that objective by clearly 
        distinguishing between surveillances directed against 
        persons located within the United States--where 
        constitutional protections apply--and those directed 
        against persons outside the United States, where the 
        fourth amendment does not apply. It then imposed the 
        court approval requirement on surveillances directed 
        against persons within the United States and left the 
        Intelligence Community free to surveil overseas targets 
        without the undue burden of court process.

    With the FAA set to expire at the end of this year, the 
Administration has strongly urged Congress to reauthorize the 
legislation. In a recent letter to Congress, both the Attorney 
General and the DNI explain that the FAA ``has proven to be an 
extremely valuable authority in protecting our nation from 
terrorism and other national security threats.'' They represent 
that the oversight of its implementation has been 
comprehensive, citing the findings of their semi-annual 
assessments that agencies have ``continued to implement the 
procedures and follow the guidelines in a manner that reflects 
a focused and concerted effort by agency personnel to comply 
with the [FAA] requirements'' and that agency personnel ``are 
appropriately focused on directing their efforts at non-United 
States persons reasonably believed to be located outside the 
United States.'' And importantly, they conclude that the 
reauthorization of the FAA ``is the top legislative priority of 
the Intelligence Community.''
    In support of the Administration's call for 
reauthorization, Mr. Wainstein asked Congress to focus on the 
three considerations: (1) the vital importance of the FAA 
surveillance authority to our counterterrorism efforts; (2) the 
extreme care with which Members of Congress considered, crafted 
and limited that authority when they passed the FAA 4 years 
ago; and (3) the representations of the Executive Branch that 
that authority has been implemented to great effect and with 
full compliance with the law and the Constitution.
    America and its allies face continuous national security 
threats from foreign nations and terrorist organizations. 
Foreign agents from rival nations continue to spy on the United 
States. And al Qaeda and other terrorist networks continue to 
plot attacks against America. America's security cannot be 
guaranteed at the border. Congress must ensure that our 
national security agencies are able to gather foreign 
intelligence information from foreign terrorists and nation-
states so that we can stop threats before they reach our 
shores. The FISA Amendments Act has proven successful in 
achieving this goal and must be extended for an additional 5 
years.

                                Hearings

    The Committee's Subcommittee on Crime, Terrorism and 
Homeland Security held 1 day of hearings on H.R. 5949, on May 
31, 2012. Testimony was received from (1) Mr. Keneith L. 
Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, and 
former Assistant Attorney General for the National Security 
Division of the Department of Justice, and the former Homeland 
Security Advisor to the President; (2) Mr. Marc Rotenberg, 
President, Electronic Privacy Information Center (EPIC); (3) 
Jameel Jaffer, Director, Center for Democracy, American Civil 
Liberties Union (ACLU).

                        Committee Consideration

    On June 19, 2012, the Committee on the Judiciary met in 
open session and ordered the bill H.R. 5949 favorably reported, 
without amendment, by recorded vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 5949.
    1. An amendment by Mr. Conyers to reauthorize the FISA 
Amendment Act to 2015. Defeated 12-12.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................
Mr. Pence....................................                X
Mr. Forbes...................................                X
Mr. King.....................................
Mr. Franks...................................                X
Mr. Gohmert..................................       X
Mr. Jordan...................................
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................
Mr. Ross.....................................
Ms. Adams....................................
Mr. Quayle...................................
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................       X
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................
Mr. Cohen....................................
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................                X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................       X
Ms. Sanchez..................................
Mr. Polis....................................
                                              --------------------------
    Total....................................      12       12
------------------------------------------------------------------------


    2. An amendment by Mr. Nadler to require the Attorney 
General to make publicly available a declassified summary of 
every decision, order, or opinion of the Foreign Intelligence 
Surveillance Court or the Foreign Intelligence Surveillance 
Court of Review that includes a significant construction or 
interpretation of Section 702 of the Foreign Intelligence 
Surveillance Act of 1978. Defeated, 14-17.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................       X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................                X
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................       X
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................
Ms. Waters...................................       X
Mr. Cohen....................................       X
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................                X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis....................................       X
                                              --------------------------
    Total....................................      14       17
------------------------------------------------------------------------


    3. An Amendment by Mr. Scott to amend Section 702(l) of the 
Foreign Intelligence Surveillance Act of 2008 to require that 
each assessment or review under paragraph 1, 2 or 3 shall be 
published in unclassified form but may have a classified annex. 
Defeated, 10-19.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................                X
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................
Mr. Amodei...................................

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................       X
Ms. Waters...................................
Mr. Cohen....................................       X
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................                X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis....................................
                                              --------------------------
    Total....................................      10       19
------------------------------------------------------------------------


    4. An amendment by Ms. Jackson Lee to require a report by 
the Inspector General of the Department of Justice and the 
Inspector General of that Intelligence Community on the 
implementation of the amendments made by the FISA Amendments 
Act of 2008. Defeated, 11-20.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................                X
Mr. Sensenbrenner, Jr........................                X
Mr. Coble....................................                X
Mr. Gallegly.................................                X
Mr. Goodlatte................................                X
Mr. Lungren..................................                X
Mr. Chabot...................................                X
Mr. Issa.....................................                X
Mr. Pence....................................                X
Mr. Forbes...................................                X
Mr. King.....................................                X
Mr. Franks...................................                X
Mr. Gohmert..................................
Mr. Jordan...................................                X
Mr. Poe......................................                X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................                X
Mr. Gowdy....................................                X
Mr. Ross.....................................                X
Ms. Adams....................................                X
Mr. Quayle...................................
Mr. Amodei...................................                X

Mr. Conyers, Jr., Ranking Member.............       X
Mr. Berman...................................
Mr. Nadler...................................       X
Mr. Scott....................................       X
Mr. Watt.....................................       X
Ms. Lofgren..................................       X
Ms. Jackson Lee..............................       X
Ms. Waters...................................
Mr. Cohen....................................       X
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................                X
Mr. Quigley..................................       X
Ms. Chu......................................       X
Mr. Deutch...................................       X
Ms. Sanchez..................................
Mr. Polis....................................
                                              --------------------------
    Total....................................      11       20
------------------------------------------------------------------------


    5. On Reporting the bill favorably to the House. Passed 23-
11.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                 Ayes     Nays   Present
------------------------------------------------------------------------
Mr. Smith, Chairman..........................       X
Mr. Sensenbrenner, Jr........................       X
Mr. Coble....................................       X
Mr. Gallegly.................................       X
Mr. Goodlatte................................       X
Mr. Lungren..................................       X
Mr. Chabot...................................       X
Mr. Issa.....................................       X
Mr. Pence....................................       X
Mr. Forbes...................................       X
Mr. King.....................................       X
Mr. Franks...................................       X
Mr. Gohmert..................................       X
Mr. Jordan...................................       X
Mr. Poe......................................       X
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino...................................       X
Mr. Gowdy....................................       X
Mr. Ross.....................................       X
Ms. Adams....................................       X
Mr. Quayle...................................
Mr. Amodei...................................       X

Mr. Conyers, Jr., Ranking Member.............                X
Mr. Berman...................................       X
Mr. Nadler...................................                X
Mr. Scott....................................                X
Mr. Watt.....................................                X
Ms. Lofgren..................................                X
Ms. Jackson Lee..............................                X
Ms. Waters...................................                X
Mr. Cohen....................................                X
Mr. Johnson, Jr..............................                X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................                X
Mr. Deutch...................................                X
Ms. Sanchez..................................
Mr. Polis....................................
                                              --------------------------
    Total....................................      23       11
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 5949, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, July 2, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5949, the ``FISA 
Amendments Act Reauthorization Act of 2012.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




  H.R. 5949--FISA Amendments Act Reauthorization Act of 2012.

  As ordered reported by the House Committee on the Judiciary 
                       on June 19, 2012.




    H.R. 5949 would extend the authority of the Federal 
Government to conduct surveillance pursuant to the FISA 
Amendments Act of 2008 (Public Law 110-261). Because CBO does 
not provide cost estimates for classified programs, this 
estimate addresses only the budgetary effects on unclassified 
programs affected by the bill. On that basis, CBO estimates 
that implementing H.R. 5949 would have no significant cost to 
the Federal Government. Enacting the bill could affect direct 
spending and revenues; therefore, pay-as-you-go procedures 
apply. However, CBO estimates that any effects would be 
insignificant for each year.
    The FISA Amendments Act of 2008 clarified the authority of 
the Federal Government to surveil and intercept communications 
of certain persons located outside the United States. H.R. 5949 
would extend the provisions of that act by five years 
(otherwise they expire after December 31, 2012). As a result, 
the government might be able to pursue cases that it otherwise 
would not be able to prosecute. CBO expects that H.R. 5949 
would apply to a relatively small number of additional 
offenders, however, so any increase in costs for law 
enforcement, court proceedings, or prison operations would not 
be significant. Any such costs would be subject to the 
availability of appropriated funds.
    Because those prosecuted and convicted under H.R. 5949 
could be subject to criminal fines, the Federal Government 
might collect additional fines if the legislation is enacted. 
Criminal fines are deposited as revenues in the Crime Victims 
Fund and later spent. CBO expects that any additional revenues 
and direct spending would not be significant because of the 
relatively small number of cases likely to be affected.
    The bill would impose both private-sector and 
intergovernmental mandates by extending an existing mandate 
that would limit civil actions and require providers of 
communication services to provide information. There is little 
information about the prevalence of electronic surveillance in 
those cases or the scope or size of potential awards from such 
cases. Consequently, CBO cannot determine whether the costs of 
those mandates would exceed the annual threshold established by 
the Unfunded Mandates Reform Act (UMRA) for private-sector 
mandates ($146 million in 2012, adjusted annually for 
inflation).
    However, few public entities receive requests for such 
information, and the costs on them would be small. The bill 
also would extend an existing preemption on State and local 
governments regarding legal rights of action. CBO estimates 
that the costs to public entities of all the intergovernmental 
mandates in the bill would be small and well below the annual 
threshold established in UMRA ($73 million in 2012, adjusted 
annually for inflation).
    On May 18, 2011, CBO transmitted a cost estimate for H.R. 
1800, the FISA Sunsets Reauthorization Act of 2011, as ordered 
reported by the House Committee on the Judiciary on May 12, 
2011. That bill would extend certain powers of the Federal 
Government to investigate terrorist acts. CBO estimated that 
implementing H.R. 1800 would have no significant cost to the 
Federal Government.
    The CBO staff contacts for this estimate are Mark Grabowicz 
and Jason Wheelock (for Federal costs), J'nell L. Blanco (for 
the impact on State and local governments), and Elizabeth Bass 
(for the impact on the private sector). The estimate was 
approved by Theresa Gullo, Deputy Assistant Director for Budget 
Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5949, makes improvements to the criminal code that will help 
law enforcement officials pursue those who steal and traffic 
pre-retail medical cargo.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5949 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title
    This section cites the short title of the bill as the ``The 
FISA Amendment Act Reauthorization Act of 2012.''
Section 2. Extends the Authorization for Five Years.
    This section changes the expiration date of the FISA 
Amendments Act of 2008 to from December 31, 2012 to December 
31, 2017.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      FISA AMENDMENTS ACT OF 2008



           *       *       *       *       *       *       *
TITLE IV--OTHER PROVISIONS

           *       *       *       *       *       *       *


SEC. 403. REPEALS.

    (a) * * *
    (b) FISA Amendments Act of 2008.--
            (1) In general.--Except as provided in section 404, 
        effective [December 31, 2012] December 31, 2017, title 
        VII of the Foreign Intelligence Surveillance Act of 
        1978, as amended by section 101(a), is repealed.
            (2) Technical and conforming amendments.--Effective 
        [December 31, 2012] December 31, 2017--
                    (A) * * *

           *       *       *       *       *       *       *


SEC. 404. TRANSITION PROCEDURES.

    (a) * * *
    (b) Transition Procedures for FISA Amendments Act of 2008 
Provisions.--
            (1) Orders in effect on [december 31, 2012] 
        december 31, 2017.--Notwithstanding any other provision 
        of this Act, any amendment made by this Act, or the 
        Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801 et seq.), any order, authorization, or 
        directive issued or made under title VII of the Foreign 
        Intelligence Surveillance Act of 1978, as amended by 
        section 101(a), shall continue in effect until the date 
        of the expiration of such order, authorization, or 
        directive.

           *       *       *       *       *       *       *


                            Dissenting Views

                              INTRODUCTION

    H.R. 5949, the ``FISA Amendments Act Reauthorization Act of 
2012,'' extends the expiration date of the Foreign Intelligence 
Surveillance Act of 1978 Amendments Act of 2008 (FAA or 
Act),\1\ which authorizes the Federal Government to conduct 
electronic surveillance of persons reasonably believed to be 
outside the United States, from December 31, 2012 to June 1, 
2017.
---------------------------------------------------------------------------
    \1\Pub. L. No. 110-261, 122 Stat. 2435 (2008).
---------------------------------------------------------------------------
    We strongly oppose this bill because it effectuates an 
unwarranted long-term extension of a controversial law that may 
have been used to violate the privacy interests of American 
citizens. To shed light on the scope of these alleged 
violations, we offered at the Committee's markup of H.R. 5949 a 
series of amendments that would have required certain 
information to be disclosed to the public and allowed Congress 
to exercise more effective oversight of the FAA. These 
carefully crafted amendments would not have compromised our 
national security or the integrity of the Act's underlying 
programs. Unfortunately, none of these amendments were adopted, 
and the Committee thereby missed an opportunity to improve a 
highly controversial law.
    H.R. 5949 is opposed by the American-Arab Anti-
Discrimination Committee, the American Association of Law 
Libraries, the American Civil Liberties Union, the American 
Library Association, the Association of Research Libraries, the 
Brennan Center for Justice, the Center for Democracy & 
Technology, the Council on American-Islamic Relations, the 
Cyber Privacy Project, the Defending Dissent Foundation, Demand 
Progress, the Electronic Frontier Foundation, the Government 
Accountability Project, the Liberty Coalition, the National 
Association of Criminal Defense Lawyers, and 
OpenTheGovernment.org.\2\
---------------------------------------------------------------------------
    \2\Letter to Representatives F. James Sensenbrenner, Jr. (R-WI), 
Chairman, & Robert C. ``Bobby'' Scott (D-VA), Ranking Member, H. 
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on 
the Judiciary, from representatives of the American-Arab Anti-
Discrimination Committee, the American Association of Law Libraries, 
the American Civil Liberties Union, the American Library Association, 
the Association of Research Libraries, the Brennan Center for Justice, 
the Center for Democracy & Technology, the Council on American-Islamic 
Relations, the Cyber Privacy Project, the Defending Dissent Foundation, 
Demand Progress, the Electronic Frontier Foundation, the Government 
Accountability Project, the Liberty Coalition, the National Association 
of Criminal Defense Lawyers, and OpenTheGovernment.org, (June 11, 2012) 
(on file with H. Comm. on the Judiciary Democratic Staff).
---------------------------------------------------------------------------
    For these reasons, and those described below, we must 
respectfully dissent.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 5949 extends the expiration date of the FAA from 
December 31, 2012 to June 1, 2017.

                               BACKGROUND

I. The Foreign Intelligence Surveillance Act
    In 1978, the Foreign Intelligence Surveillance Act 
(``FISA'') was enacted to establish a statutory framework for 
gathering ``foreign intelligence information'' from U.S. 
persons.\3\ FISA authorizes special court orders for four 
purposes: electronic surveillance, physical searches, the 
installation and use of pen registers and trap and trace 
devices, and demands for the production of physical items. 
Although FISA is designed for intelligence gathering and not 
for the collection of criminal evidence, the law applies to 
activities to which a Fourth Amendment warrant requirement 
would apply if they were conducted as part of a criminal 
investigation.\4\
---------------------------------------------------------------------------
    \3\50 U.S.C. Sec. Sec. 1801 et seq.
    \4\See 50 U.S.C. Sec. 1801(f)(1) (limiting the definition of 
``electronic surveillance'' to instances ``in which a person has a 
reasonable expectation of privacy and a warrant would be required for 
law enforcement purposes'').
---------------------------------------------------------------------------
    Most commonly, authorization for a wiretap or physical 
search under FISA is obtained by application to the Foreign 
Intelligence Surveillance Court (``FISC'' or the ``FISA 
court''). The FISC is composed of eleven Federal district court 
judges designated by the Chief Justice of the United States.\5\ 
In most circumstances, the FISC will approve an application to 
conduct electronic surveillance of a U.S. person if there is 
probable cause to believe that the target is the agent of a 
foreign power. In exigent circumstances, FISA also allows the 
government to collect foreign intelligence information without 
FISC supervision for a limited period of time.\6\
---------------------------------------------------------------------------
    \5\50 U.S.C. Sec. 1803(a)(1).
    \6\Id. Sec. 1824(a).
---------------------------------------------------------------------------
II. Events Leading to the Enactment of the FAA
    Preceding the enactment of the FAA in 2008 were two 
programs aimed at intercepting overseas communications: the 
warrantless wiretapping program, which was conducted without 
congressional authorization from 2001 to 2007, and the now-
repealed Protect America Act.
            A. Warrantless Wiretapping (2001-2007)
    In 2005, The New York Times reported that the Federal 
Government had ``monitored the international telephone calls 
and international e-mail messages of hundreds, perhaps 
thousands, of people in the United States without 
warrants.''\7\ Subsequently, President George W. Bush 
acknowledged that he had authorized the National Security 
Agency (NSA) to ``intercept international communications into 
and out of the United States'' by ``persons linked to al Qaeda 
or related terrorist organizations,'' based solely on ``his 
constitutional authority to conduct warrantless wartime 
electronic surveillance of the enemy.''\8\
---------------------------------------------------------------------------
    \7\James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers 
without Courts, N.Y. Times, Dec. 16, 2005, at 1, available at http://
www.nytimes.com/2005/12/16/politics/16
program.html?_r=1.
    \8\U.S. Dept. of Justice, Legal Authorities Supporting the 
Activities of the National Security Agency Described by the President, 
at 5, 17, Jan. 19, 2006, available at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
---------------------------------------------------------------------------
    The House and Senate intelligence committees were not 
informed of the full scope of this program until early 2006. As 
the Senate Select Committee on Intelligence concluded:

        The enormous secrecy surrounding the President's 
        Program had little to do with the operational 
        sensitivity of the collection methods. It was widely 
        known that the NSA was surveilling terrorists. What was 
        ``sensitive'' was that the surveillance was not lawful: 
        it violated a statute passed by Congress and signed 
        into law by the President.\9\
---------------------------------------------------------------------------
    \9\S. Rep. No. 110-209, at 13 (2007).

    On January 17, 2007, Attorney General Alberto Gonzales 
stated to Congress that ``any electronic surveillance that was 
occurring as part of the Terrorist Surveillance Program will 
now be conducted subject to the approval of the Foreign 
Intelligence Surveillance Court.''\10\ Several groups filed 
suit alleging statutory and constitutional violations by the 
telecommunications companies that participated in the program, 
and the question of retroactive immunity for these companies 
became central to debate about what statutory authority, if 
any, would replace the NSA program.
---------------------------------------------------------------------------
    \10\Letter from Attorney General Alberto Gonzales to the Senate 
Judiciary Committee (Jan. 17, 2007).
---------------------------------------------------------------------------
            B. The Protect America Act (2007-2008)
    On July 18, 2007, the Bush Administration announced that it 
had submitted a bill to Congress to amend FISA. President Bush 
explained that FISA was ``badly out of date,'' despite several 
recent revisions, and that the Act did not apply to new 
technologies like disposable cell phones or internet-based 
communications.\11\ Pressure from the Bush Administration 
interrupted negotiations on bipartisan legislation, and the 
Protect America Act (``PAA'') was signed into law on August 5, 
2007.\12\
---------------------------------------------------------------------------
    \11\The White House, ``President's Radio Address'' (broadcast July 
28, 2007).
    \12\Protect America Act of 2007, Pub. L. No. 110-55 (2007) 
(expired).
---------------------------------------------------------------------------
    The PAA modified FISA's definition of ``electronic 
surveillance'' to exclude from court oversight any surveillance 
``directed at a person reasonably believed to be outside of the 
United States.''\13\ This change was put forward as means to 
explicitly exclude from FISA purely foreign communications 
routed through United States telecommunications networks. In 
practice, however, the mechanism stripped away many protections 
for U.S. persons as well.\14\
---------------------------------------------------------------------------
    \13\50 U.S.C. Sec. 1805A (expired).
    \14\For example, FISA restricts the dissemination of information 
about U.S. persons acquired from ``electronic surveillance.'' By 
excluding surveillance activities from the definition of ``electronic 
surveillance,'' the PAA also rolled back these protections.
---------------------------------------------------------------------------
    The PAA also set up a new procedure under which the 
Attorney General or the Director of National Intelligence, 
without court oversight, could obtain foreign intelligence 
information ``concerning'' persons outside the United States. 
The Administration simply certified to itself that the 
acquisition did not fit the new definition of ``electronic 
surveillance,'' and that a ``significant purpose'' of the 
acquisition was to obtain foreign intelligence.\15\ These 
certifications were not subject to judicial review. The word 
``concerning'' was read to allow warrantless surveillance of 
American citizens, including members of the U.S. armed forces, 
both at home and abroad.
---------------------------------------------------------------------------
    \15\50 U.S.C. Sec. 1805B(a) (expired).
---------------------------------------------------------------------------
    In effect, the PAA compelled telecommunications companies 
to allow the government immediate access to their facilities 
for data collection. Any entity that refused ran the risk of a 
contempt citation from the FISC.\16\ The PAA provided 
prospective immunity for entities that cooperated with the 
government, but did not address the question of retroactive 
immunity.\17\ Because of its controversial nature, Congress 
included a 180-day sunset of the PAA.\18\ The statute expired 
on February 17, 2008, and was explicitly repealed by the FISA 
Amendments Act.
---------------------------------------------------------------------------
    \16\Id. Sec. Sec. 1805B(e) and (g) (expired).
    \17\Id. Sec. 1805B(l) (expired).
    \18\Pub. L. No. 110-55 Sec. 6(c) (2007).
---------------------------------------------------------------------------
III. Overview of the FAA
    Signed into law on July 10, 2008, the FAA added title VII 
to FISA. This new title sets forth procedures for the 
acquisition of foreign intelligence information from overseas 
targets. Title VII applies to three types of intelligence 
collection: (1) targeting non-U.S. persons who are reasonably 
believed to be outside the United States;\19\ (2) gathering 
electronic communications or other data in the United States 
with respect to U.S. persons who are outside the United 
States;\20\ and (3) ``other acquisitions'' targeting U.S. 
persons who are outside the United States.\21\
---------------------------------------------------------------------------
    \19\50 U.S.C. Sec. 1881a.
    \20\Id. Sec. 1881b.
    \21\Id. Sec. 1881c. This provision is used when section 1881b is 
unavailable--i.e., because acquisition takes place outside the United 
States, or because the action involves something other than electronic 
surveillance, like a physical search.
---------------------------------------------------------------------------
    All three of these authorities are scheduled to sunset on 
December 31, 2012.\22\ The Obama Administration has asked that 
Congress reauthorize these authorities through June 1, 
2017.\23\ In closed session, on May 22, 2012, the Senate Select 
Committee on Intelligence approved S. 3276, the ``FAA Sunsets 
Extension Act of 2012,'' to extend title VII for 5 years. H.R. 
5949 is substantively identical to S. 3276.
---------------------------------------------------------------------------
    \22\Pub. L. 110-261 Sec. 403(b) (2008).
    \23\Letter to Speaker John Boehner, Speaker, U.S. House of 
Representatives et al. from James R. Clapper, Director of National 
Intelligence (Mar. 26, 2012).
---------------------------------------------------------------------------
    Of the three authorities described in title VII, section 
702 is the most controversial. This provision authorizes the 
Attorney General and the Director of National Intelligence--for 
up to 1 year--``to acquire foreign intelligence information'' 
from ``persons reasonably believed to be located outside the 
United States.''\24\ The FAA explicitly limits this power in 
several key aspects:
---------------------------------------------------------------------------
    \24\50 U.S.C. Sec. 1881a.

         LThe government may not intentionally target 
        any person known at the time of acquisition to be in 
---------------------------------------------------------------------------
        the United States;

         LThe government may not engage in ``reverse 
        targeting,'' i.e., targeting a non-U.S. person outside 
        the United States for the purpose of intercepting the 
        communications of a U.S. person without a warrant;

         LThe government may not intentionally target a 
        U.S. person;

         LThe government may not intentionally acquire 
        a communication that is sent and received entirely by 
        persons known to be within the United States, and

         LAny surveillance under this authority must be 
        conducted in a manner consistent with the Fourth 
        Amendment.\25\
---------------------------------------------------------------------------
    \25\Id. Sec. 1881a(b).

    In addition, the government is obligated to use ``targeting 
procedures'' to narrow the scope of collection and 
``minimization procedures'' to limit the retention and 
dissemination of information about U.S. persons.\26\ Targeting 
procedures are the steps that the government takes prior to 
collection to ensure that it only targets non-U.S. persons 
overseas. Minimization procedures go into effect after 
collection, and describe how the government will handle 
information that falls outside the legal limits of the FAA.
---------------------------------------------------------------------------
    \26\Id. Sec. Sec. 1881a(d) and (e).
---------------------------------------------------------------------------
    The government is not required to obtain a warrant to 
conduct surveillance under this authority. Instead, the 
government must certify that appropriate targeting and 
minimization procedures are in place before surveillance 
begins.\27\ If the certification is complete and targeting and 
minimization procedures are adequate, then the FISC enters an 
order approving the collection. Otherwise, the government has 
30 days to correct any deficiencies in the application or cease 
its surveillance activities.\28\ In exigent circumstances, the 
government may conduct surveillance for up to 7 days before 
submitting the related certification to the FISC.\29\
---------------------------------------------------------------------------
    \27\Id. Sec. 1881a(g).
    \28\Id. Sec. 1881a(i)(3).
    \29\50 U.S.C. Sec. 1881a(g)(B).
---------------------------------------------------------------------------
    The FAA also bars the initiation or continuation of civil 
suits, in state and Federal court, against any entity ``for 
providing assistance to an element of the intelligence 
community.''\30\ This provision includes retroactive immunity 
for telecommunications companies that participated in the 
warrantless wiretapping program ``authorized by the President 
during the period beginning on September 11, 2001, and ending 
on January 17, 2007.''\31\ The courts have upheld the 
constitutionality of this retroactive immunity against claims 
based in the First Amendment, the Due Process Clause of the 
Fifth Amendment, and the separation of powers.\32\ This 
provision of the FAA is not scheduled to expire.
---------------------------------------------------------------------------
    \30\Id. Sec. 1885a.
    \31\Id. Sec. 1885a(a)(4).
    \32\In re National Security Agency Telecommunications Records 
Litigation, 633 F. Supp. 2d 949 (N.D. Cal. 2009). The court also 
rejected a challenge under the Administrative Procedure Act. Id. at 
974-76.
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 5949

    The FAA raises significant civil liberties concerns. 
Without question, it enables the government to collect 
significant and valuable foreign intelligence. It also 
authorizes the interception of private communications with U.S. 
citizens and other individuals lawfully on U.S. soil, thereby 
presenting serious incursions against the privacy protections 
afforded by the Fourth Amendment and the rights of free speech 
and association under the First Amendment. Congress should not 
reauthorize these authorities unless the executive branch can 
assure all Americans publicly--to the greatest extent 
possible--that these concerns have been adequately addressed.
    At the Committee's markup, we offered amendments that would 
have left the underlying authorities of the FAA intact, but 
have required the government to make basic, non-sensitive 
information available to the public. The FAA is an important 
tool for intelligence gathering, but classified reports and 
secret court opinions are no substitute for public oversight.
I. The Public Has a Right to Know How the Government Uses Warrantless 
        Wiretapping Authorities
    Under section 702 of FISA, as added by the FAA, the 
government can and does intercept the communications of U.S. 
citizens, even in the absence of any particularized warrant or 
showing of probable cause. This approach to electronic 
surveillance raises concerns under the Fourth Amendment, which 
prohibits unreasonable searches, warrantless eavesdropping, and 
the use of ``general warrants.''\33\ In light of the fact that 
many United States entities, e.g., reporters, lawyers, 
religious groups, and human rights organizations, frequently 
communicate with overseas persons who are likely targets of 
section 702, this authority also raises First Amendment 
questions about the chilling effect of electronic surveillance 
on free speech and free association.
---------------------------------------------------------------------------
    \33\The Fourth Amendment provides:

      The right of the people to be secure in their persons, 
      houses, papers, and effects, against unreasonable searches 
      and seizures, shall not be violated, and no Warrants shall 
      issue, but upon probable cause, supported by Oath or 
      affirmation, and particularly describing the place to be 
---------------------------------------------------------------------------
      searched, and the persons to be seized.

U.S. Const. amend. IV.
    Section 702 imposes three different reporting requirements 
on the executive branch. Every 6 months, the Attorney General 
and the Director of National Intelligence must evaluate the 
effectiveness of targeting and minimization procedures.\34\ 
Each component of the intelligence community must review its 
own use of section 702 authority.\35\ Finally, each agency that 
uses section 702 must conduct an annual review of its 
activities and their impact on U.S. persons.\36\
---------------------------------------------------------------------------
    \34\50 U.S.C. Sec. 1881a(l)(1).
    \35\Id. Sec. 1881a(l)(2).
    \36\Id. Sec. 1881a(l)(3).
---------------------------------------------------------------------------
    Notwithstanding these requirements, the government has 
released very little information about its use of the FAA. The 
public has a right to know, at least in general terms, how 
often section 702 is invoked, what kind of information the 
government collects using this authority, and how the 
government limits the impact of these programs on American 
citizens.
    During the Committee's markup of H.R. 5949, Representative 
Bobby Scott (D-VA) offered an amendment that would have made 
these basic items of information available to the public by 
requiring the government to submit these reports to Congress in 
unclassified form. This amendment would have give Americans a 
sense of how the government uses the FAA, what kind of 
information it collects under section 702, and what steps it 
takes to protect U.S. citizens from unwarranted government 
intrusion. The amendment would not have put sensitive 
information at risk because it would permitted the government 
to include a classified annex, if necessary, in each report. We 
are disappointed that this simple change, necessary for 
meaningful public participation in this debate, was defeated 
ten to 19.
II. The Public Has a Right to Know How the Government Interprets these 
        Authorities
    The FISA court plays a critical role in overseeing the 
government's use of section 702. Since 2008, each time that the 
intelligence community has sought to use this authority, the 
government has applied to the court for approval of its 
targeting and minimization procedures. These classified 
opinions are available to Members of the Committee, but the 
decisions and orders of the FISA court, which have shaped the 
government's interpretation of the FAA over time, are not 
available to the general public.
    In markup, Representative Jerrold Nadler (D-NY) offered an 
amendment that would have, for the first time, required the 
government to publish unclassified summaries of this secret 
body of law. Specifically, this amendment would have required 
the Attorney General to provide an unclassified summary of each 
decision, order, and opinion, issued by the FISA court that 
includes a significant interpretation or construction of 
section 702 of FISA.
    The disclosures mandated by this amendment have had 
bipartisan support. For example, the Subcommittee on Crime, 
Terrorism, and Homeland Security held a hearing on 
reauthorization of the FAA on May 31, 2012. At the conclusion 
of that hearing, in response to a question about making more 
information about electronic surveillance available to the 
public, Chairman Sensenbrenner stated:

        My guess is that, rather than playing the numbers game 
        either with the actual targets or the people who were 
        incidentally surveilled, perhaps decisions of the FISA 
        Court, particularly the review of the FISA court 
        appropriately redacted, would be able to give us the 
        answer to that question. . . . I have always been one 
        that has favored disclosure.\37\
---------------------------------------------------------------------------
    \37\The FISA Amendments Act: Hearing before the Subcomm. on Crime, 
Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 
112th Cong. (2012) (statement of Chairman Sensenbrenner).

    Chairman Sensenbrenner was correct. An appropriately 
redacted summary of key FISA court opinions would go a long way 
towards a public understanding of section 702, and would 
underscore how seriously the FISC takes its oversight 
responsibilities.
    Given the fact that the Nadler amendment would have only 
required summaries of these opinions--and not the opinions 
themselves--the government would still be able to protect 
sensitive intelligence sources and methods. This amendment 
aimed only to make the legal reasoning of the FISA court 
available to the public. It also sought to ensure that the 
United States should not have a secret body of law.
    Notwithstanding support from both Democrats and 
Republicans, Representative Nadler's amendment failed by a vote 
of 14 to 17.
III. The Public Has a Right to Know If Its Privacy Has Been Violated
    On its face, the FAA prohibits the intentional targeting of 
U.S. persons and persons located in the United States. 
Targeting and minimization procedures are required to limit the 
unintentional collection and use of information that the 
government could not normally access without a warrant. 
Unfortunately, the government has not always adhered to the 
legal limits of section 702 authority.
    The FAA had been in place for only a few months when The 
New York Times reported that the NSA had ``overcollected'' 
domestic communications, a practice described as significant 
and systematic, even if unintentional.\38\ Although the 
government assures the committees of jurisdiction that this 
issue has been corrected, nearly all of the oversight of these 
programs is conducted in secret. As a result, the public has no 
way of knowing that its right to privacy is secure.
---------------------------------------------------------------------------
    \38\Eric Lichtblau & James Risen, Officials Say U.S. Wiretaps 
Exceeded Law, N.Y. Times, Apr. 15, 2009, at A1, available at http://
www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all.
---------------------------------------------------------------------------
    The most troubling aspect of section 702 is its impact on 
the private communications of U.S. persons. The Office of the 
Director of National Intelligence has stated that ``it is not 
reasonably possible to identify the number of people located in 
the United States whose communications may have been reviewed 
under the authority of the FAA.''\39\ The Inspector General of 
the Intelligence Community has deferred to the NSA to reach a 
similar conclusion.\40\
---------------------------------------------------------------------------
    \39\Letter to Senators Ron Wyden (D-OR) & Mark Udall (D-CO), S. 
Select Comm. on Intelligence, from Kathleen Turner, Director of 
Legislative Affairs, Office of the Director of National Intelligence 
(July 26, 2011).
    \40\Letter to Senators Ron Wyden (D-OR) & Mark Udall (D-CO), S. 
Select Comm. on Intelligence, from I. Charles McCollough III, Inspector 
General of the Intelligence Community (June 15, 2012).
---------------------------------------------------------------------------
    We are prepared to accept that it might be difficult to 
determine the exact number of U.S. persons whose communications 
have been intercepted by the government under section 702, but 
the intelligence community surely has the ability to arrive at 
a rough estimate. If the government has never even estimated 
how many Americans have had their communications collected 
under the FAA, then the impact of this law on U.S. citizens may 
be more pronounced than Congress ever intended.
    To address this concern, Representative Sheila Jackson Lee 
(D-TX) offered an amendment that would have directed the 
Inspectors General of the Intelligence Community and the 
Department of Justice to produce an estimate of how many 
Americans have had their communications collected under section 
702. The amendment would have also directed the Inspectors 
General to review compliance incidents, with a particular focus 
on recurring problems affecting the privacy of persons inside 
the United States. The resulting report would have been made 
public, with whatever redactions might be necessary to protect 
properly classified information.
    Although this amendment failed by a vote of 11 to 20, we 
will continue to press the government to provide this 
information.
IV. A 5-year Extension of this Law Ignores Our Oversight 
        Responsibilities
    The Obama Administration has asked Congress to extend these 
expiring authorities through December 31, 2017. If H.R. 5949 
passes without amendment, no matter what the outcome of the 
election this fall, the next presidential administration will 
come and go before Congress next debates reauthorization of the 
FAA.
    The legislative branch, however, must do better. We must 
require title VII of FISA to sunset earlier because this 
ensures that the delicate balance between the need to collect 
foreign intelligence information and the duty to protect the 
civil rights of American citizens is maintained. Congress 
should periodically revisit these authorities to examine the 
government's record, and, if necessary, to scale back the power 
we have given to the executive branch. Five years is simply too 
long to ignore these responsibilities.
    To address this shortcoming in the legislation, Ranking 
Member John Conyers, Jr. (D-MI) offered an amendment that would 
have moved the bill's sunset date to June 1, 2015. By requiring 
a 3-year extension instead of the bill's 5-year extension, this 
amendment was a very reasonable compromise between our national 
security interests and our obligation to conduct meaningful 
oversight. Ranking Member Conyers' amendment would have also 
had the effect of synching these authorities with the three 
sunsetting provisions of FISA enacted by the USA PATRIOT Act: 
the roving wiretap provision, which permits the government to 
follow an individual suspect, rather than a specific telephone 
or device;\41\ the ``section 215'' business records provision, 
which allows the government to demand virtually any information 
or record from a person or business by showing that the seizure 
is ``relevant'' to a national security investigation;\42\ and 
the never-used ``lone wolf'' provision, which enables the 
government to conduct surveillance on individuals suspected of 
terrorist activity but unaffiliated with any terrorist 
organization.\43\ This amendment would have enabled us to 
consider all of these controversial FISA amendments at the same 
time, instead of piecemeal over the course of the next 5 years.
---------------------------------------------------------------------------
    \41\50 U.S.C. Sec. 1805 note.
    \42\Id. Sec. Sec. 1861 note and 1862 note.
    \43\Id. Sec. 1801 note.
---------------------------------------------------------------------------
    There is little harm, and much to gain, from revisiting the 
FAA sooner rather than later. Although the Conyers amendment 
failed 12 to 12, we believe that we can still persuade our 
colleagues to defend our oversight role and adopt a shorter 
sunset.

                               CONCLUSION

    Unless it is amended, H.R. 5949 will represent a failure to 
conduct meaningful oversight of a controversial government 
authority. Americans are entitled to know how this law affects 
their constitutionally-protected rights to privacy, free 
association, and free speech; and Congress has a responsibility 
to withhold reauthorization of the FAA until a basic measure of 
transparency is ensured.
    For these reasons, we must respectfully dissent.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Judy Chu.
                                   Jared Polis.

                            Additional Views

    I concur in the dissent of my colleagues to H.R. 5949, the 
``FISA Amendments Act Reauthorization Act of 2012.'' In 
addition to the dissenting views detailed by my colleagues, I 
offer these additional dissenting views. I believe there is 
inadequate due process for U.S. persons in H.R. 5949. I was 
prepared to introduce an amendment to the Committee markup of 
H.R. 5949 that addressed this concern, but ultimately did not 
file the amendment--a copy of that unfiled amendment is 
included in this statement.
    The FISA Amendments Act of 2008 (FAA) requires that an 
order from the FISA Court be based on probable cause in order 
to intentionally target any U.S. person for electronic 
surveillance. [Sec. 703(c)(1)(B)] In addition, the FAA 
prohibits so-called ``reverse targeting''--in which the 
government targets a non-U.S. person for the purpose of 
acquiring information on a particular, known U.S. person. [Sec. 
702(b)(2)]
    However, the FAA does not make it clear that the government 
must obtain a warrant prior to searching for information 
acquired incidentally on a U.S. person in compliance with Sec. 
702. Instead, the information of U.S. persons in such a 
situation is subject to guidelines and ``minimization 
procedures'' that are adopted by the Attorney General and that 
must be approved by the FISA Court--but which do not explicitly 
include a warrant requirement under the FAA. [Secs. 702(f)(1) 
and 702(c)(1)]
    Congress should prohibit the Federal Government from 
intentionally searching for information on a U.S. person in a 
data pool amassed lawfully under Sec. 702 of FISA should such a 
data pool ever be amassed--unless the searching official has a 
warrant, consent of the data subject, an emergency 
authorization, or a reasonable belief that the life or safety 
of the data subject is threatened and the information is needed 
to assist that person.
    The prohibition on ``reverse targeting''--where the 
government deliberately targets a non-U.S. person for the 
purpose of acquiring information about a U.S. person at the 
other end of the line--is not a substitute for a warrant 
requirement to search a database for a U.S. person should such 
a database ever be amassed pursuant to Sec. 702. Congress 
should require a warrant for the government to search for any 
U.S. person in that data if such data exists. ``Minimization 
procedures'' are also not a substitute for a warrant in such a 
case.
    The government must comply with the Fourth Amendment at all 
times, and the FAA should reflect that explicitly.
    For the above reasons and those described in the dissenting 
views, I concur and join in the dissent of my colleagues to 
H.R. 5949.

                                   Zoe Lofgren.

                               ATTACHMENT


                                  
