[Senate Report 112-174]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 424
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-174
======================================================================
 
                   FAA SUNSETS EXTENSION ACT OF 2012

                                _______
                                


                  June 7, 2012.--Ordered to be printed

                                _______
                                

          Mrs. Feinstein, from the Committee on Intelligence, 

                        submitted the following


                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 3276]

    The Select Committee on Intelligence, having considered an 
original bill (S. 3276) to extend certain amendments made by 
the FISA Amendments Act of 2008, and for other purposes, 
reports favorably thereon and recommends that the bill do pass.

                  BACKGROUND AND NEED FOR LEGISLATION

    The sunset for Title VII of the Foreign Intelligence 
Surveillance Act (FISA), as added by the FISA Amendments Act 
(Public Law 110-261), is scheduled to occur on December 31, 
2012. This bill extends the sunset to June 1, 2017. The 
Director of National Intelligence (DNI) and the Attorney 
General wrote to the leadership of the Senate and the House of 
Representatives on February 8, 2012, to urge that Congress 
reauthorize Title VII of FISA. They noted that the authorities 
under this title of FISA allow the Intelligence Community to 
collect vital information about international terrorists and 
other important targets overseas while providing a 
comprehensive regime of oversight to protect the civil 
liberties and privacy of Americans. The DNI and Attorney 
General also provided an unclassified background paper on the 
structure, operation, and oversight of Title VII (reprinted in 
the appendix of this report). On March 26, 2012, the DNI 
provided the Administration's proposed legislation to extend 
the sunset to June 1, 2017, and reauthorize Title VII without 
amendment.
    The Committee, since its inception in 1976, has considered 
oversight of the Executive branch's use of electronic 
surveillance for foreign intelligence purposes to be one of its 
most important responsibilities. A central focus of that 
oversight has been the implementation of FISA by the 
Intelligence Community and the Department of Justice as well as 
the interpretation and judicial oversight of FISA performed by 
the Foreign Intelligence Surveillance Court (FISC). Consistent 
with this focus, the Committee's oversight of the 
implementation of the FISA Amendments Act has been extensive. 
In addition to the letter and background paper described above, 
the Committee has held several hearings and briefings on the 
implementation of the FAA between 2008 and 2012. Committee 
Members and staff have held numerous meetings with supervisors, 
operators, analysts, lawyers, compliance officers, and others 
at the National Security Agency, Department of Justice, Federal 
Bureau of Investigation (FBI), Office of the DNI (ODNI), and 
other relevant entities.
    Specifically related to reauthorizing the FAA, the 
Committee has received testimony in support from the Assistant 
Attorney General for National Security, the DNI, the Director 
of the FBI, the Director and Deputy Director of the National 
Security Agency, the Director of the National Counterterrorism 
Center, the General Counsel of the ODNI, and other officials. 
The Committee has also received and considered views from 
nongovernmental organizations with interests in FISA.
    The Committee has found, based on its numerous hearings and 
briefings since 2008, that the authorities provided under the 
FISA Amendments Act have greatly increased the government's 
ability to collect information and act quickly against 
important foreign intelligence targets. The Committee has also 
found that Title VII has been implemented with attention to 
protecting the privacy and civil liberties of U.S. persons, and 
has been the subject of extensive oversight by the Executive 
branch, the FISC, as well as the Congress. As pointed out by 
the Attorney General and DNI, failure to reauthorize Title VII 
of FISA would ``result in a loss of significant intelligence 
and impede the ability of the Intelligence Community to respond 
quickly to new threats and intelligence opportunities.''
    In light of its findings, the Committee has concluded that 
the authorities of Title VII should be extended until June 1, 
2017, a period of sufficient duration to help assure the 
stability of this critical foreign intelligence collection 
effort while the three branches of government continue their 
close oversight of the use of these authorities.

              OPERATION AND OVERSIGHT OF TITLE VII OF FISA

    Title VII of FISA, as added by the FISA Amendments Act, 
established procedures for the conduct of certain intelligence 
collection activities targeting persons reasonably believed to 
be located outside the United States. Under Section 702, the 
FISC is authorized to approve annual certifications made by the 
Attorney General and the DNI to obtain foreign intelligence 
information by engaging in collection directed at non-U.S. 
person reasonably believed to be located outside the United 
States.\1\
---------------------------------------------------------------------------
    \1\In exigent circumstances, the Attorney General and the DNI may 
authorize an immediate acquisition under Section 702; however, they 
must then submit a certification to the FISC as soon as practicable, 
but in no event later than seven days after they determined the 
existence of such exigent circumstances.
---------------------------------------------------------------------------
    Section 702 also requires that the government adopt 
targeting and minimization procedures, which must be reviewed 
and approved by the FISC. The minimization procedures, in 
particular, govern the handling of any information concerning 
U.S. persons acquired incidentally under Section 702, including 
procedures governing the retention and dissemination of such 
information. These procedures serve to protect the privacy and 
civil liberties of U.S. persons. The targeting procedures must 
be reasonably designed to ensure that persons subjected to an 
acquisition under Section 702 are reasonably believed to be 
outside the United States.
    Subject to FISC approval of the certifications and 
procedures or an exigent circumstances determination, the 
government may engage in intelligence collection directed at 
non-U.S. persons abroad who fall within the scope of the 
certification, without the requirement for individualized court 
orders. In enacting this amendment to FISA, Congress ensured 
there would be important protections and oversight measures to 
safeguard the privacy and civil liberties of U.S. persons, 
including specific prohibitions against using Section 702 
authority to: ``intentionally target any person known at the 
time of acquisition to be located in the United States;'' 
``intentionally target a person reasonably believed to be 
located outside the United States if the purpose of such 
acquisition is to target a particular, known person reasonably 
believed to be in the United States;'' ``intentionally target a 
United States person reasonably believed to be located outside 
the United States;'' or ``intentionally acquire any 
communication as to which the sender and all intended 
recipients are known at the time of the acquisition to be 
located in the United States.'' As an additional measure the 
law also requires that an acquisition under Section 702 ``shall 
be conducted in a manner consistent with the fourth amendment 
to the Constitution of the United States.''
    In addition to establishing procedures for obtaining 
foreign intelligence information through collection directed at 
non-U.S. persons reasonably believed to be located outside of 
the United States, Title VII established new requirements in 
Sections 703 and 704 for collection targeted against U.S. 
persons located overseas. Prior to the enactment of the FISA 
Amendments Act, elements of the Intelligence Community were 
authorized to engage in collection under Section 2.5 of 
Executive Order 12333, provided that the Attorney General made 
a determination that there was probable cause to believe the 
U.S. person target was a foreign power or agent of a foreign 
power. After enactment of the FISA Amendments Act, Sections 703 
and 704 provide the FISC with a specific grant of jurisdiction 
to issue individualized court orders based upon a showing of 
probable cause that the targeted U.S. person is reasonably 
believed to be outside the United States and a foreign power, 
agent of a foreign power, or an officer or employee of a 
foreign power. Section 704, in particular, strengthens the 
privacy protections and civil liberties of U.S. persons located 
outside the United States by providing judicial review where 
such review did not previously exist.
    Title VII also imposes, with Title VI of FISA, substantial 
reporting requirements on the government in order to enable 
both judicial and congressional oversight, in addition to the 
oversight performed within the Executive branch by the 
Department of Justice, the Office of the DNI, the individual 
agencies within the Intelligence Community, and the associated 
Inspectors General. Section 702 requires semiannual assessments 
by the Attorney General and the DNI that are provided to 
Congress and the FISC. In addition, the Inspectors General of 
the Department of Justice and certain elements of the 
Intelligence Community are authorized to review the 
implementation of Section 702 and must provide copies of any 
such reviews to the Attorney General, DNI, and congressional 
committees of jurisdiction. The head of each element of the 
Intelligence Community conducting an acquisition under Section 
702 is also required to perform annual reviews of the 
implementation of Section 702 and provide copies of those 
reviews to the FISC, Attorney General, DNI, and congressional 
committees of jurisdiction. Also, Section 707 mandates 
comprehensive semiannual reports by the Attorney General to the 
congressional intelligence and judiciary committees on the 
implementation of Title VII. Finally, pursuant to Section 601 
of the Act, the Attorney General is required to provide a 
semiannual report to congressional intelligence and judiciary 
committees that includes summaries of significant legal 
interpretations of FISA made by the FISC and copies of all 
decisions, orders, or opinions of the FISC that include a 
significant construction or interpretation of the Act.
    It should also be clear what is not involved in this sunset 
extension. Title VIII of FISA, which was added by Title II of 
the FISA Amendments Act, established procedures for immunity 
for electronic communication service providers who furnish 
certain assistance to an element of the Intelligence Community, 
including assistance furnished in connection with an 
intelligence activity authorized by the President during the 
period between 2001 and 2007. These immunity provisions are not 
subject to a sunset. They have been subject, however, to 
judicial review as provided for in Title VIII of FISA. Nothing 
in the sunset extension in this bill will have any effect on 
such litigation or the underlying immunity provision of Title 
VIII of FISA.

              SECTION-BY-SECTION ANALYSIS AND EXPLANATION

    The following is a section-by-section analysis and 
explanation of the FAA Sunsets Extension Act of 2012 that is 
being reported by the Committee.

Section 1. Short title

    Section 1 states that the Act may be cited as the ``FAA 
Sunsets Extension Act of 2012.''

Section 2. Extension of FISA Amendments Act of 2008 Sunset

    Section 2(a) amends Section 403(b)(1) of the FISA 
Amendments Act of 2008 (Public Law 110-261; 50 U.S.C. 1881 
note) by striking ``December 31, 2012'' and inserting ``June 1, 
2017''.
    Subsection (b) makes technical and conforming changes in 
Section 403(b)(2) of the Act.
    Subsection (c) amends the heading in Section 404(b)(1) of 
the Act to strike ``DECEMBER 31, 2012'' and insert ``JUNE 1, 
2017''.

                            COMMITTEE ACTION

    On May 22, 2012, a quorum being present, the Committee met 
to consider the bill and amendments. The Committee took the 
following actions:

Votes on amendments to the committee bill

    By unanimous consent, the Committee made the Chairman and 
Vice Chairman's bill the base text for purposes of amendment. 
The Committee also authorized the staff to make technical and 
conforming changes in the bill and report, following the 
completion of the mark-up.
    By a vote of 12 ayes and 3 noes, the Committee determined 
that Senator Wyden's motion to request that the Committee's 
Technical Advisory Group be reconstituted to examine the FISA 
Amendments Act was out of order. The votes in person or by 
proxy were as follows: Chairman Feinstein--aye; Senator 
Rockefeller--aye; Senator Wyden--no; Senator Mikulski--aye; 
Senator Nelson--aye; Senator Conrad--no; Senator Udall--no; 
Senator Warner--aye; Vice Chairman Chambliss--aye; Senator 
Snowe--aye; Senator Burr--aye; Senator Risch--aye; Senator 
Coats--aye; Senator Blunt--aye; Senator Rubio--aye.
    By a vote of 2 ayes to 13 noes, the Committee rejected an 
amendment offered by Senator Wyden and Senator Udall, to 
require a report by the Inspector General of the Department of 
Justice and the Inspector General of the Intelligence Community 
on the implementation of the amendments made by the FISA 
Amendments Act of 2008. The votes in person or by proxy were as 
follows: Chairman Feinstein--no; Senator Rockefeller--no; 
Senator Wyden--aye; Senator Mikulski--no; Senator Nelson--no; 
Senator Conrad--no; Senator Udall--aye; Senator Warner--no; 
Vice Chairman Chambliss--no; Senator Snowe--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Blunt--no; 
Senator Rubio--no.
    By a vote of 2 ayes to 13 noes, the Committee rejected an 
amendment offered by Senator Wyden and Senator Udall, 
concerning prohibitions on acquisition of or searching contents 
of communications of United States persons. The votes in person 
or by proxy were as follows: Chairman Feinstein--no; Senator 
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--no; 
Senator Nelson--no; Senator Conrad--no; Senator Udall--aye; 
Senator Warner--no; Vice Chairman Chambliss--no; Senator 
Snowe--no; Senator Burr--no; Senator Risch--no; Senator Coats--
no; Senator Blunt--no; Senator Rubio--no.

Vote to report the committee bill

    The Committee voted to report the bill, by a vote of 13 
ayes and 2 noes. The votes in person or by proxy were as 
follows: Chairman Feinstein--aye; Senator Rockefeller--aye; 
Senator Wyden--no; Senator Mikulski--aye; Senator Nelson--aye; 
Senator Conrad--aye; Senator Udall--no; Senator Warner--aye; 
Vice Chairman Chambliss--aye; Senator Snowe--aye; Senator 
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator 
Blunt--aye; Senator Rubio--aye.

                       COMPLIANCE WITH RULE XLIV

    Rule XLIV of the Standing Rules of the Senate requires 
publication of a list of any ``congressionally directed 
spending item, limited tax benefit, and limited tariff 
benefit'' that is included in the bill or the committee report 
accompanying the bill. Consistent with the determination of the 
Committee not to create any congressionally directed spending 
items or earmarks, none have been included in the bill or the 
report to accompany it. The bill and report also contain no 
limited tax benefits or limited tariff benefits.

                           ESTIMATE OF COSTS

    Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing 
Rules of the Senate, the Committee deems it impractical to 
include an estimate of the costs incurred in carrying out the 
provisions of this report due to the classified nature of the 
operations conducted pursuant to this legislation. On May 24, 
2012, the Committee transmitted this bill to the Congressional 
Budget Office and requested it to conduct an estimate of the 
costs incurred in carrying out unclassified provisions.

                    EVALUATION OF REGULATORY IMPACT

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that no 
substantial regulatory impact will be incurred by implementing 
the provisions of this legislation.

                        CHANGES IN EXISTING LAWS

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                            ADDITIONAL VIEWS

    For the past four years, the Senate Select Committee on 
Intelligence has conducted robust oversight of the Executive 
Branch's use of the surveillance authorities added to the 
Foreign Intelligence Surveillance Act (FISA) by the FISA 
Amendments Act of 2008 (FAA). This oversight has included the 
receipt and examination of over eight assessments and reviews 
per year concerning the implementation of FAA surveillance 
authorities, which by law are required to be prepared by the 
Attorney General, the Director of National Intelligence, the 
heads of various elements of the intelligence community, and 
the Inspectors General associated with those elements. In 
addition, the Committee has received and scrutinized un-
redacted copies of every classified opinion of the Foreign 
Intelligence Surveillance Court (FISA Court) containing a 
significant construction or interpretation of the law, as well 
as the pleadings submitted by the Executive Branch to the FISA 
Court relating to such opinions. Finally, the Committee has 
conducted several full hearings on both FISA generally and FAA 
specifically, which have been supplemented by numerous staff 
meetings with officials from the National Security Agency 
(NSA), Department of Justice (DOJ), Office of the Director of 
National Intelligence (ODNI), Federal Bureau of Investigation 
(FBI), and others.
    As Chairman of the Committee, I appreciate the efforts 
taken by the Executive Branch to keep the Committee fully 
informed regarding the implementation of the FAA and for its 
continued willingness to brief Members of Congress as we 
consider legislation to extend those provisions of the law set 
to expire on December 31, 2012.
    Collectively, the assessments, reports, and other 
information obtained by the Committee demonstrate that the 
government implements the FAA surveillance authorities in a 
responsible manner with relatively few incidents of non-
compliance. Where such incidents have arisen, they have been 
the inadvertent result of human error or technical defect and 
have been promptly reported and remedied. Through four years of 
oversight, the Committee has not identified a single case in 
which a government official engaged in a willful effort to 
circumvent or violate the law. Moreover, having reviewed 
opinions by the FISA Court, the Committee has also seen the 
seriousness with which the Court takes its responsibility to 
carefully consider Executive Branch applications for the 
exercise of FAA surveillance authorities.
    As a result of this oversight, the Committee has acted on a 
large, bipartisan majority basis to reauthorize the parts of 
this important legislation that are set to expire at the end of 
this year. For the reasons described elsewhere in this report 
concerning the intelligence value the FAA provides, I believe 
that reauthorization is imperative.
    As the Committee considered legislation to reauthorize 
these expiring provisions, concerns were raised regarding the 
effects that one provision (Section 702 of FISA) may have on 
the privacy and civil liberties of U.S. persons. This provision 
established a legal framework for the government to acquire 
foreign intelligence by targeting non-U.S. persons who are 
reasonably believed to be located outside the United States, 
under a program that is approved by the FISA Court. The 
concerns associated with this provision--some of which are 
articulated elsewhere in this report--stem from the potential 
for collection directed at non-U.S. persons located abroad to 
result in incidental collection of communications of or 
concerning U.S. persons. I understand these concerns, and would 
like to explain why I believe that the existing FAA provisions 
are adequate to address them.
    First, Section 702 is narrowly tailored to ensure that it 
may only be used to target non-U.S. persons located abroad. For 
example, Section 702 includes specific prohibitions on 
targeting U.S. persons or persons inside the United States and 
engaging in so-called ``reverse targeting'' (i.e., targeting a 
non-U.S. person abroad in order to obtain their communications 
with a person inside the United States).
    Second, Congress recognized at the time the FISA Amendments 
Act was enacted that it is simply not possible to collect 
intelligence on the communications of a party of interest 
without also collecting information about the people with whom, 
and about whom, that party communicates, including in some 
cases non-targeted U.S. persons. It is important to recognize, 
however, that a similar potential for incidental collection 
concerning non-targeted U.S. persons exists under ?traditional? 
FISA collection and law enforcement wiretaps, and it is a 
concern that was addressed when the FAA was originally drafted.
    Specifically, in order to protect the privacy and civil 
liberties of U.S. persons, Congress mandated that, for 
collection conducted under Section 702, the Attorney General 
adopt, and the FISA Court review and approve, procedures that 
minimize the acquisition, retention, and dissemination of 
nonpublicly available information concerning unconsenting U.S. 
persons.
    Third, the numerous reporting requirements outlined above 
provide the Committee with extensive visibility into the 
application of these minimization procedures and enable the 
Committee to evaluate the extent to which these procedures are 
effective in protecting the privacy and civil liberties of U.S. 
persons. Notably, the FISA Court, which receives many of the 
same reports available to the Committee, has repeatedly held 
that collection carried out pursuant to the Section 702 
minimization procedures used by the government is reasonable 
under the Fourth Amendment.
    During the Committee?s consideration of this legislation, 
several Senators expressed a desire to quantify the extent of 
incidental collection under Section 702. I share this desire. 
However, the Committee has been repeatedly advised by the ODNI 
that due to the nature of the collection and the limits of the 
technology involved, it is not reasonably possible to identify 
the number of people located in the United States whose 
communications may have been reviewed under Section 702 
authority. Senators Ron Wyden and Mark Udall have requested a 
review by the Inspector General of the NSA and the Inspector 
General of the Intelligence Community to determine whether it 
is feasible to estimate this number. The Inspectors General are 
conducting that review now, thus making an amendment on this 
subject unnecessary.
    Finally, on a related matter, the Committee considered 
whether querying information collected under Section 702 to 
find communications of a particular United States person should 
be prohibited or more robustly constrained. As already noted, 
the Intelligence Community is strictly prohibited from using 
Section 702 to target a U.S. person, which must at all times be 
carried out pursuant to an individualized court order based 
upon probable cause. With respect to analyzing the information 
lawfully collected under Section 702, however, the Intelligence 
Community provided several examples in which it might have a 
legitimate foreign intelligence need to conduct queries in 
order to analyze data already in its possession. The Department 
of Justice and Intelligence Community reaffirmed that any 
queries made of Section 702 data will be conducted in strict 
compliance with applicable guidelines and procedures and do not 
provide a means to circumvent the general requirement to obtain 
a court order before targeting a U.S. person under FISA.
    Ultimately, it is in the Nation?s interest to see this 
statute reauthorized, and the first priority of this Congress 
must be to ensure that this important law does not lapse at the 
end of the year. The Committee's action to report a clean bill 
that would extend the sunsets of the FISA Amendments Act, 
without amendment that could impede its ultimate enactment, is 
an important step in ensuring this result.
    I look forward to moving this process forward, through the 
Senate and in discussions with the House of Representatives.

                                                  Dianne Feinstein.

                             MINORITY VIEWS

    The bill that is now being reported by the Senate 
Intelligence Committee would extend the expiration date of the 
FISA Amendments Act of 2008 from December 2012 to June 2017. We 
opposed this long-term, multi-year extension because we believe 
that Congress does not have an adequate understanding of the 
impact that this law has had on the privacy of law-abiding 
American citizens. In our view it is important for members of 
Congress and the public to get a fuller understanding of this 
law's privacy impact so that Congress can consider whether it 
should be modified, rather than simply extended without 
changes.
    We are particularly concerned about a loophole in the law 
that could allow the government to effectively conduct 
warrantless searches for Americans' communications. Since we do 
not know how many Americans have had their phone calls and 
emails collected under this law, we believe that it is 
particularly important to have strong rules in place to protect 
the privacy of these Americans. We are disappointed that this 
bill does not attempt to add these protections.
    The central provision in the FISA Amendments Act added a 
new section 702 to the original FISA statute. Section 702 was 
designed to give the government new authorities to collect the 
communications of people who are reasonably believed to be 
foreigners outside the United States. Because section 702 does 
not involve obtaining individual warrants, it contains language 
specifically intended to limit the government's ability to use 
these new authorities to deliberately spy on American 
citizens.\1\
---------------------------------------------------------------------------
    \1\The FISA Amendments Act also contains provisions that are 
intended to require the government to get an individual warrant before 
delibrately collecting the communications of an American believed to be 
outside the United States. These provisions, which were added by an 
amendment offered b Senator Wyden, are now sections 703 and 704 of the 
FISA statute.
---------------------------------------------------------------------------
    We have concluded, however, that section 702 currently 
contains a loophole that could be used to circumvent 
traditional warrant protections and search for the 
communications of a potentially large number of American 
citizens. We have sought repeatedly to gain an understanding of 
how many Americans have had their phone calls or emails 
collected and reviewed under this statute, but we have not been 
able to obtain even a rough estimate of this number.
    The Office of the Director of National Intelligence told 
the two of us in July 2011 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 FISA 
Amendments Act. We are prepared to accept that it might be 
difficult to come up with an exact count of this number, but it 
is hard for us to believe that it is impossible to even 
estimate it.
    During the committee's markup of this bill we 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. Our amendment would 
have permitted the Inspectors General to come up with a rough 
estimate of this number, using whatever analytical techniques 
they deemed appropriate. We are disappointed that this 
amendment was voted down by the committee, but we will continue 
our efforts to obtain this information.\2\
---------------------------------------------------------------------------
    \2\We also proposed directing the committee's Technical Advisory 
Group to study FISA Amendments Act collection and provide 
recommendations for improvements. We were disappointed that our motion 
to request that the Technical Advisory Group study this issue was ruled 
by our colleagues to be out of order.
---------------------------------------------------------------------------
    We are concerned, of course, that if no one has even 
estimated how many Americans have had their communications 
collected under the FISA Amendments Act, then it is possible 
that this number could be quite large. Since all of the 
communications collected by the government under section 702 
are collected without individual warrants, we believe that 
there should be clear rules prohibiting the government from 
searching through these communications in an effort to find the 
phone calls or emails of a particular American, unless the 
government has obtained a warrant or emergency authorization 
permitting surveillance of that American.
    Section 702, as it is currently written, does not contain 
adequate protections against warrantless ``back door'' searches 
of this nature. We offered an amendment during the committee's 
markup of this bill that would have clarified the law to 
prohibit searching through communications collected under 
section 702 in an effort to find a particular American's 
communications. Our amendment included exceptions for searches 
that involved a warrant or an emergency authorization, as well 
as for searches for the phone calls or emails of people who are 
believed to be in danger or who consent to the search.\3\ We 
were disappointed that this amendment was also voted down by 
the committee, but we will continue to work to close this 
loophole before the FISA Amendments Act is extended.
---------------------------------------------------------------------------
    \3\The full text of both of our amendments is below.
---------------------------------------------------------------------------
    We recognize that the collection that has taken place under 
the FISA Amendments Act has produced some useful intelligence, 
so our preference would be to enact a short-term 
reauthorization to give Congress time to get more information 
about the impact of this law on Americans' privacy rights and 
consider possible modifications. We believe that protections 
against warrantless searches for Americans' communications 
should be added to the law immediately, however.
    An obvious question that we have not answered here is 
whether any warrantless searches for Americans' communications 
have taken place. We are not suggesting that any warrantless 
searches have or have not occurred, because Senate and 
committee rules regarding classified information generally 
prohibit us from discussing what intelligence agencies are 
actually doing or not doing. However, we have an obligation as 
elected legislators to discuss what these agencies should or 
should not be doing, and we hope that a majority of our Senate 
colleagues will agree with us that searching for Americans' 
phone calls and emails without a warrant is something that 
these agencies should not do.

                                   Ron Wyden.
                                   Mark Udall.

COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN (FOR HIMSELF AND MR. UDALL OF 
                               COLORADO)

    At the appropriate place, insert the following:

SEC. __. REPORT ON THE IMPLEMENTATION OF THE FISA AMENDMENTS ACT OF 
                    2008.

    (a) Requirement for Report.--Not later than one year after 
the date of the enactment of this Act, the Inspector General of 
the Department of Justice and the Inspector General of the 
Intelligence Community shall submit to the entities described 
in subsection (b) a report on the implementation of the 
amendments made by the FISA Amendments Act of 2008 (Public Law 
110-261; 122 Stat. 2436).
    (b) Entities Described.--The entities described in this 
subsection are the following:
          (1) Congress.
          (2) The Attorney General.
          (3) The Director of National Intelligence.
          (4) The court established under section 103 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1803).
    (c) Content.--The report required by subsection (a) shall 
include the following:
          (1) An assessment of the impact that implementation 
        of section 702 of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1881a) has had on the privacy of 
        persons inside the United States.
          (2) An assessment of the extent to which acquisitions 
        made under such section 702 have resulted in the 
        acquisition or review of the contents of communications 
        of persons located inside the United States, 
        including--
                  (A) the number of persons located inside the 
                United States who have had the contents of 
                their communications acquired under such 
                section 702, and the number of persons located 
                inside the United States who have had the 
                contents of their communications reviewed under 
                such section 702; or
                  (B) if it is not possible to determine such 
                numbers, the estimate of the Inspectors General 
                of such numbers made using representative 
                sampling or other analytical techniques.
          (3) A review of the Inspectors General of incidents 
        of non-compliance with such section 702, with a 
        particular focus on any types of non-compliance 
        incidents that have recurred, and the impact of such 
        non-compliance on the privacy of persons inside the 
        United States.
          (4) An assessment of any significant instances in 
        which an intelligence agency may have complied with the 
        statutory language of such section 702, but not with 
        the spirit or intent of such section 702, and the 
        impact of such non-compliance on the privacy of persons 
        inside the United States.
    (d) Consultation.--The Inspector General of the Department 
of Justice and the Inspector General of the Intelligence 
Community may consult with the inspectors general of elements 
of the intelligence community in preparing the report required 
by subsection (a).
    (e) Access.--The Inspector General of the Department of 
Justice and the Inspector General of the Intelligence Community 
shall have all appropriate access needed to prepare the report 
required by subsection (a).
    (f) Public Disclosure.--The Inspector General of the 
Department of Justice and the Inspector General of the 
Intelligence Community shall make the report required by 
subsection (a) available to the public. The version made 
available to the public shall contain whatever redactions may 
be necessary to protect properly classified information.

COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN (FOR HIMSELF AND MR. UDALL OF 
                               COLORADO)

    At the appropriate place, insert the following:

SEC.__. CLARIFICATION ON PROHIBITION ON ACQUISITION OF OR SEARCHING 
                    CONTENTS 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 acquisition of 
        or searching contents of communications of united 
        states persons.--
                  ``(A) In general.--Except as provided in 
                subparagraph (B), nothing in this section may 
                be construed to permit--
                          ``(i) the intentional acquisition of 
                        the contents of communications of a 
                        particular United States person; or
                          ``(ii) the searching of the contents 
                        of communications acquired under this 
                        section in an effort to find 
                        communications of a particular United 
                        States person.
                  ``(B) Concurrent authorization and exception 
                for emergency situations.--Subparagraph (A) 
                does not apply to a search of 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 or 704, 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.''.

                                APPENDIX

  BACKGROUND PAPER ON TITLE VII OF FISA PREPARED BY THE DEPARTMENT OF 
   JUSTICE AND THE OFFICE OF DIRECTOR OF NATIONAL INTELLIGENCE (ODNI)

    This paper describes the provisions of Title VII of the 
Foreign Intelligence Surveillance Act (FISA) that were added by 
the FISA Amendments Act of 2008 (FAA).\5\ Title VII has proven 
to be an extremely valuable authority in protecting our nation 
from terrorism and other national security threats. Title VII 
is set to expire at the end of this year, and its 
reauthorization is the top legislative priority of the 
Intelligence Community.
---------------------------------------------------------------------------
    \5\Title VII of FISA is codified at 50 U.S.C. Sec. Sec. 1881-1881g.
---------------------------------------------------------------------------
    The FAA added a new section 702 to FISA, permitting the 
Foreign Intelligence Surveillance Court (FISC) to approve 
surveillance of terrorist suspects and other foreign 
intelligence targets who are non-U.S. persons outside the 
United States, without the need for individualized court 
orders. Section 702 includes a series of protections and 
oversight measures to safeguard the privacy and civil liberties 
interests of U.S. persons. FISA continues to include its 
original electronic surveillance provisions, meaning that, in 
most cases,\6\ an individualized court order, based on probable 
cause that the target is a foreign power or an agent of a 
foreign power, is still required to conduct electronic 
surveillance of targets inside the United States. Indeed, other 
provisions of Title VII extend these protections to U.S. 
persons overseas. The extensive oversight measures used to 
implement these authorities demonstrate that the Government has 
used this capability in the manner contemplated by Congress, 
taking great care to protect privacy and civil liberties 
interests.
---------------------------------------------------------------------------
    \6\In very limited circumstances, FISA expressly permits 
surveillance without a court order. See, e.g., 50 U.S.C. Sec. 1805(e) 
(Attorney General may approve emergency surveillance if the standards 
of the statute are met and he submits an application to the FISC within 
seven days).
---------------------------------------------------------------------------
    This paper begins by describing how section 702 works, its 
importance to the Intelligence Community, and its extensive 
oversight provisions. Next, it turns briefly to the other 
changes made to FISA by the FAA, including section 704, which 
requires an order from the FISC before the Government may 
engage in surveillance targeted at U.S. persons overseas. 
Third, this paper describes the reporting to Congress that the 
Executive Branch has done under Title VII of FISA. Finally, 
this paper explains why the Administration believes it is 
essential that Congress reauthorize Title VII.
1. Section 702 provides valuable foreign intelligence information about 
        terrorists and other targets overseas, while protecting the 
        privacy and civil liberties of Americans
    Section 702 permits the FISC to approve surveillance of 
terrorist suspects and other targets who are non-U.S. persons 
outside the United States, without the need for individualized 
court orders. The FISC may approve surveillance of these kinds 
of targets when the Government needs the assistance of an 
electronic communications service provider.
    Before the enactment of the FAA and its predecessor 
legislation, in order to conduct the kind of surveillance 
authorized by section 702, FISA was interpreted to require that 
the Government show on an individualized basis, with respect to 
all non-U.S. person targets located overseas, that there was 
probable cause to believe that the target was a foreign power 
or an agent of a foreign power, and to obtain an order from the 
FISC approving the surveillance on this basis. In effect, the 
Intelligence Community treated non-U.S. persons located 
overseas like persons in the United States, even though 
foreigners outside the United States generally are not entitled 
to the protections of the Fourth Amendment. Although FISA's 
original procedures are proper for electronic surveillance of 
persons inside this country, such a process for surveillance of 
terrorist suspects overseas can slow, or even prevent, the 
Government's acquisition of vital information, without 
enhancing the privacy interests of Americans. Since its 
enactment in 2008, section 702 has significantly increased the 
Government's ability to act quickly.
    Under section 702, instead of issuing individual court 
orders, the FISC approves annual certifications submitted by 
the Attorney General and the DNI that identify categories of 
foreign intelligence targets. The provision contains a number 
of important protections for U.S. persons and others in the 
United States. First, the Attorney General and the DNI must 
certify that a significant purpose of the acquisition is to 
obtain foreign intelligence information. Second, an acquisition 
may not intentionally target a U.S. person. Third, it may not 
intentionally target any person known at the time of 
acquisition to be in the United States. Fourth, it may not 
target someone outside the United States for the purpose of 
targeting a particular, known person in this country. Fifth, 
section 702 prohibits the intentional acquisition of ``any 
communication as to which the sender and all intended 
recipients are known at the time of the acquisition'' to be in 
the United States. Finally, it requires that any acquisition be 
consistent with the Fourth Amendment.
    To implement these provisions, section 702 requires 
targeting procedures, minimization procedures, and acquisition 
guidelines. The targeting procedures are designed to ensure 
that an acquisition only targets persons outside the United 
States, and that it complies with the restriction on acquiring 
wholly domestic communications. The minimization procedures 
protect the identities of U.S. persons, and any nonpublic 
information concerning them that may be incidentally acquired. 
The acquisition guidelines seek to ensure compliance with all 
of the limitations of section 702 described above, and to 
ensure that the Government files an application with the FISC 
when required by FISA.
    The FISC reviews the targeting and minimization procedures 
for compliance with the requirements of both the statute and 
the Fourth Amendment. Although the FISC does not approve the 
acquisition guidelines, it receives them, as do the appropriate 
congressional committees. By approving the certifications 
submitted by the Attorney General and the DNI as well as by 
approving the targeting and minimization procedures, the FISC 
plays a major role in ensuring that acquisitions under section 
702 are conducted in a lawful and appropriate manner.
    Section 702 is vital in keeping the nation safe. It 
provides information about the plans and identities of 
terrorists, allowing us to glimpse inside terrorist 
organizations and obtain information about how those groups 
function and receive support. In addition, it lets us collect 
information about the intentions and capabilities of weapons 
proliferators and other foreign adversaries who threaten the 
United States. Failure to reauthorize section 702 would result 
in a loss of significant intelligence and impede the ability of 
the Intelligence Community to respond quickly to new threats 
and intelligence opportunities. Although this unclassified 
paper cannot discuss more specifically the nature of the 
information acquired under section 702 or its significance, the 
Intelligence Community is prepared to provide Members of 
Congress with detailed classified briefings as appropriate.
    The Executive Branch is committed to ensuring that its use 
of section 702 is consistent with the law, the FISC's orders, 
and the privacy and civil liberties interests of U.S. persons. 
The Intelligence Community, the Department of Justice, and the 
FISC all oversee the use of section 702. In addition, 
congressional committees conduct essential oversight, which is 
discussed in section 3 below.
    Oversight of activities conducted under section 702 begins 
with components in the intelligence agencies themselves, 
including their Inspectors General. The targeting procedures, 
described above, seek to ensure that an acquisition targets 
only persons outside the United States and that it complies 
with section 702's restriction on acquiring wholly domestic 
communications. For example, the targeting procedures for the 
National Security Agency (NSA) require training of agency 
analysts, and audits of the databases they use. NSA's Signals 
Intelligence Directorate also conducts other oversight 
activities, including spot checks of targeting decisions. With 
the strong support of Congress, NSA has established a 
compliance office, which is responsible for developing, 
implementing, and monitoring a comprehensive mission compliance 
program.
    Agencies using section 702 authority must report promptly 
to the Department of Justice and ODNI incidents of 
noncompliance with the targeting or minimization procedures or 
the acquisition guidelines. Attorneys in the National Security 
Division (NSD) of the Department routinely review the agencies' 
targeting decisions. At least once every 60 days, NSD and ODNI 
conduct oversight of the agencies' activities under section 
702. These reviews are normally conducted on-site by a joint 
team from NSD and ODNI. The team evaluates and, where 
appropriate, investigates each potential incident of 
noncompliance, and conducts a detailed review of agencies' 
targeting and minimization decisions.
    Using the reviews by Department of Justice and ODNI 
personnel, the Attorney General and the DNI conduct a semi-
annual assessment, as required by section 702, of compliance 
with the targeting and minimization procedures and the 
acquisition guidelines. The assessments have found 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 
requirements of Section 702.'' The reviews have not found ``any 
intentional attempt to circumvent or violate'' legal 
requirements. Rather, agency personnel ``are appropriately 
focused on directing their efforts at non-United States persons 
reasonably believed to be located outside the United 
States.''\7\
---------------------------------------------------------------------------
    \7\Semiannual Assessment of Compliance with Procedures and 
Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence 
Surveillance Act, Submitted by the Attorney General and the Director of 
National Intelligence, Reporting Period: December 1, 2010-May 31, 2011 
at 2-3, 5 (December 2011).
---------------------------------------------------------------------------
    Section 702 thus enables the Government to collect 
information effectively and efficiently about foreign targets 
overseas and in a manner that protects the privacy and civil 
liberties of Americans. Through rigorous oversight, the 
Government is able to evaluate whether changes are needed to 
the procedures or guidelines, and what other steps may be 
appropriate to safeguard the privacy of personal information. 
In addition, the Department of Justice provides the joint 
assessments and other reports to the FISC. The FISC has been 
actively involved in the review of section 702 collection. 
Together, all of these mechanisms ensure thorough and 
continuous oversight of section 702 activities.
2. Other important provisions of Title VII of FISA also should be 
        reauthorized
    In contrast to section 702, which focuses on foreign 
targets, section 704 provides heightened protection for 
collection activities conducted overseas and directed against 
U.S. persons located outside the United States. Section 704 
requires an order from the FISC in circumstances in which the 
target has ``a reasonable expectation of privacy and a warrant 
would be required if the acquisition were conducted inside the 
United States for law enforcement purposes.'' It also requires 
a showing of probable cause that the targeted U.S. person is 
``a foreign power, an agent of a foreign power, or an officer 
or employee of a foreign power.'' Previously, these activities 
were outside the scope of FISA and governed exclusively by 
section 2.5 of Executive Order 12333.\8\ By requiring the 
approval of the FISC, section 704 enhanced the civil liberties 
of U.S. persons.
---------------------------------------------------------------------------
    \8\Since before the enactment of the FAA, section 2.5 of Executive 
Order 12333 has required the Attorney General to approve the use by the 
Intelligence Community against U.S. persons abroad of ``any technique 
for which a warrant would be required if undertaken for law enforcement 
purposes.'' The Attorney General must find that there is probable cause 
to believe that the U.S. person is a foreign power or an agent of a 
foreign power. The provisions of section 2.5 continue to apply to these 
activities, in addition to the requirements of section 704.
---------------------------------------------------------------------------
    The FAA also added several other provisions to FISA. 
Section 703 complements section 704 and permits the FISC to 
authorize an application targeting a U.S. person outside the 
United States to acquire foreign intelligence information, if 
the acquisition constitutes electronic surveillance or the 
acquisition of stored electronic communications or data, and is 
conducted in the United States. Because the target is a U.S. 
person, section 703 requires an individualized court order and 
a showing of probable cause that the target is a foreign power, 
an agent of a foreign power, or an officer or employee of a 
foreign power. Other sections of Title VII allow the Government 
to obtain various authorities simultaneously, govern the use of 
information in litigation, and provide for congressional 
oversight. Section 708 clarifies that nothing in Title VII is 
intended to limit the Government's ability to obtain 
authorizations under other parts of FISA.
3. Congress has been kept fully informed, and conducts vigorous 
        oversight, of Title VII's implementation
    FISA imposes substantial reporting requirements on the 
Government to ensure effective congressional oversight of these 
authorities. Twice a year, the Attorney General must ``fully 
inform, in a manner consistent with national security,'' the 
Intelligence and Judiciary Committees about the implementation 
of Title VII. With respect to section 702, this semi-annual 
report must include copies of certifications and significant 
FISC pleadings and orders. It also must describe any compliance 
incidents, any use of emergency authorities, and the FISC's 
review of the Government's pleadings. With respect to sections 
703 and 704, the report must include the number of applications 
made, and the number granted, modified, or denied by the FISC.
    Section 702 requires the Government to provide to the 
Intelligence and Judiciary Committees its assessment of 
compliance with the targeting and minimization procedures and 
the acquisition guidelines. In addition, Title VI of FISA 
requires a summary of significant legal interpretations of FISA 
in matters before the FISC or the Foreign Intelligence 
Surveillance Court of Review. The requirement extends to 
interpretations presented in applications or pleadings filed 
with either court by the Department of Justice. In addition to 
the summary, the Department must provide copies of judicial 
decisions that include significant interpretations of FISA 
within 45 days.
    The Government has complied with the substantial reporting 
requirements imposed by FISA to ensure effective congressional 
oversight of these authorities. The Government has informed the 
Intelligence and Judiciary Committees of acquisitions 
authorized under section 702; reported, in detail, on the 
results of the reviews and on compliance incidents and remedial 
efforts; made all written reports on these reviews available to 
the Committees; and provided summaries of significant 
interpretations of FISA, as well as copies of relevant judicial 
opinions and pleadings.
4. It is essential that Title VII of FISA be reauthorized well in 
        advance of its expiration
    The Administration strongly supports the reauthorization of 
Title VII of FISA. It was enacted after many months of 
bipartisan effort and extensive debate. Since its enactment, 
Executive Branch officials have provided extensive information 
to Congress on the Government's use of Title VII, including 
reports, testimony, and numerous briefings for Members and 
their staffs. This extensive record demonstrates the proven 
value of these authorities, and the commitment of the 
Government to their lawful and responsible use.
    Reauthorization will ensure continued certainty with the 
rules used by Government employees and our private partners. 
The Intelligence Community has invested significant human and 
financial resources to enable its personnel and technological 
systems to acquire and review vital data quickly and lawfully. 
Our adversaries, of course, seek to hide the most important 
information from us. It is at best inefficient and at worst 
unworkable for agencies to develop new technologies and 
procedures and train employees, only to have a statutory 
framework subject to wholesale revision. This is particularly 
true at a time of limited resources. It is essential that these 
authorities remain in place without interruption--and without 
the threat of interruption--so that those who have been 
entrusted with their use can continue to protect our nation 
from its enemies.

                                  
