[Senate Report 112-229]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 463
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-229

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



 
                 THE FAA SUNSETS EXTENSION ACT OF 2012

                                _______
                                

               September 20, 2012.--Ordered to be printed

                                _______
                                

            Mr. Leahy, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 3276]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, which considered the 
original bill (S. 3276), to extend certain amendments made by 
the FISA Amendments Act of 2008, and for other purposes, having 
considered the same, reports favorably thereon, with amendment, 
and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose of The FAA Sunsets Extension Act of 2012.................1
 II. Background.......................................................3
III. History of the Bill and Committee Consideration..................8
 IV. Section-by-Section Summary of the Bill..........................11
  V. Congressional Budget Office Cost Estimate.......................12
 VI. Regulatory Impact Evaluation....................................14
VII. Conclusion......................................................14
VIII.Additional and Minority Views...................................15

 IX. Changes to Existing Law Made by the Bill, as Reported...........24
  X. Appendix........................................................28

          I. Purpose of the FAA Sunsets Extension Act of 2012

    Title VII of the Foreign Intelligence Surveillance Act of 
1978 (``FISA'') is scheduled to sunset on December 31, 2012, 
unless it is reauthorized by Congress. Title VII of FISA was 
initially enacted through the Foreign Intelligence Surveillance 
Act of 1978 Amendments Act of 2008 (``FISA Amendments Act'' or 
``FAA''). The FAA Sunsets Extension Act of 2012, as amended, 
reauthorizes Title VII of FISA for three years, enabling 
continued use of these important surveillance tools, while 
improving and clarifying the oversight and accountability 
provisions in Title VII to help ensure adequate protection of 
the privacy rights and civil liberties of persons in the United 
States.
    The measure reported by the Committee reauthorizes the 
provisions of Title VII of FISA until June 1, 2015. This is the 
same date on which three other surveillance provisions of FISA 
are set to expire, specifically Sections 206 and 215 of the USA 
PATRIOT Act (P.L. 107-56) (colloquially known as the ``roving 
wiretap'' and ``business records'' provisions) and Section 
6001(a) of the Intelligence Reform and Terrorism Protection Act 
(P.L. 108-458) (the ``lone wolf'' provision). Aligning the 
sunsets for all of these provisions of FISA will allow Congress 
to consider these important surveillance authorities in a 
comprehensive fashion, and avoid the repeated consideration of 
multiple sunsets that has resulted in a number of short-term 
extensions during the past several years. Indeed, an 
overwhelming, bipartisan majority of the Senate Select 
Committee on Intelligence proposed the exact same approach when 
it approved the Intelligence Authorization Act for Fiscal Year 
2012, noting in its committee report that ``[t]he alignment of 
all the remaining sunset dates in FISA--those recently extended 
by Congress to June 1, 2015 and the sunset for Title VII--will 
provide Congress with an opportunity to examine comprehensively 
all expiring authorities at the same time rather than in a 
piecemeal fashion.''\1\
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    \1\Senate Report 112-043, accompanying S. 1458, Intelligence 
Authorization Act for Fiscal Year 2012, at p. 15.
---------------------------------------------------------------------------
    The reported measure also bolsters the oversight and 
accountability provisions contained in Title VII of FISA by, 
among other things, requiring the Inspector General of the 
Intelligence Community to conduct a comprehensive review of the 
implementation of the FISA Amendments Act, with particular 
regard to the protection of the privacy rights of United States 
persons. The bill also clarifies the scope of the annual 
reviews submitted by the relevant agencies involved in the 
implementation of Title VII to ensure that Congress receives 
sufficient information to perform its oversight duties. In 
addition, in order to improve transparency, the bill requires 
the Inspector General of the Intelligence Community to release 
publicly a summary of his conclusions following the 
comprehensive review of the implementation of the Title VII 
surveillance authorities.
    Senator Feinstein, Chairman of the Senate Select Committee 
on Intelligence, has noted that none of these provisions pose 
operational problems. Instead, this measure permits the 
intelligence community to continue its surveillance activities 
authorized under Title VII, while ensuring--through improved 
oversight and accountability measures, and a more reasonable 
sunset date--that the privacy rights and civil liberties of 
Americans are protected.

                             II. Background


          A. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

    The Foreign Intelligence Surveillance Act was enacted by 
Congress in 1978 in the wake of revelations that the Government 
had abused its power by conducting extensive surveillance on 
American citizens during the 1960s and 1970s under the guise of 
protecting national security.\2\ Through the passage of FISA, 
Congress established a Foreign Intelligence Surveillance Court 
(``FISC'' or ``FISA court'') comprised of sitting Federal 
judges, as well as a statutory framework within which the FISA 
court could determine when the Government could properly seek 
to gather foreign intelligence information from United States 
persons. The primary standard applied by the FISA court in 
assessing surveillance requests by the Government is whether 
there is probable cause to believe that the target of the 
surveillance is the agent of a foreign power.\3\
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    \2\Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 50 
U.S.C. Sec. 1801 et seq.
    \3\See, e.g., 50 U.S.C. Sec. 1805(a)(2)(A). A detailed summary of 
the history and legal standards of the Foreign Intelligence 
Surveillance Act can be found in the following CRS report: 
``Reauthorization of the FISA Amendments Act,'' Congressional Research 
Service, September 12, 2012, available at http://www.crs.gov/pages/
Reports.aspx?PRODCODE=R42725&Source=search.
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            B. ENACTMENT OF THE FISA AMENDMENTS ACT OF 2008

    Shortly after the terrorist attacks on September 11, 2001, 
President Bush authorized the National Security Agency (NSA) to 
conduct secret, warrantless surveillance within the United 
States of international communications into and out of the 
United States. President Bush stated that this surveillance was 
directed at ``persons linked to al Qaeda or related terrorists 
organizations.'' This warrantless surveillance was conducted 
outside the scope of FISA, without any approval by the FISA 
court, and without the full knowledge or consent of Congress. 
The public first became aware of the existence of this 
warrantless surveillance program in December 2005 through a 
report in The New York Times. In January 2007, Attorney General 
Alberto Gonzales announced that this warrantless surveillance 
program, which came to be known as the Terrorist Surveillance 
Program (TSP), would be conducted subject to the approval of 
the FISA court.
    In the spring of 2007, the Director of National 
Intelligence submitted to Congress a proposal to amend FISA to 
ease restrictions on the surveillance of communications of 
foreigners where one or both parties to the communication were 
located overseas. The legislative proposal allowed the 
Government to target for surveillance any ``person reasonably 
believed to be outside of the United States'' without the need 
for a FISA court order. Congress enacted this proposed 
legislation in August 2007 as the Protect America Act, but 
imposed a six-month sunset on the legislation because of 
concerns that the bill lacked sufficient protection for or 
oversight of communications involving United States persons.
    In the fall of 2007, Congress began consideration of 
various legislative proposals to replace the Protect America 
Act, which ultimately expired in February 2008. The Senate 
Select Committee on Intelligence reported a bill in October 
2007 that created a new legal framework for the collection of 
communications targeting non-United States persons who were 
reasonably believed to be located overseas. Notably, that bill, 
S. 2248, included a provision that provided retroactive 
immunity from civil suit to those private sector 
telecommunications companies that had aided the Government in 
conducting warrantless wiretapping through the Terrorist 
Surveillance Program. In November 2007, the bill was 
sequentially referred to the Senate Judiciary Committee, where 
it was amended to remove the retroactive immunity provisions 
and to include additional oversight and privacy protections. 
The legislation that was ultimately enacted in July 2008, 
however, retained the retroactive immunity provisions, but only 
some of the oversight and privacy protection provisions that 
had been included in the bill reported by the Senate Judiciary 
Committee. The final legislation--the Foreign Intelligence 
Surveillance Act of 1978 Amendments Act of 2008 (``FISA 
Amendments Act'')--included a sunset date of December 31, 2012. 
The retroactive immunity provisions were not subject to the 
sunset.

                    C. OVERVIEW OF TITLE VII OF FISA

    The primary surveillance authority granted by the FISA 
Amendments Act is found in Section 702 of FISA. Section 702 
permits the Government to conduct domestic electronic 
surveillance to collect foreign intelligence information from 
individuals who are non-U.S. persons, and who are reasonably 
believed to be located outside the United States. Under Section 
702, the Government is not required to seek individualized 
court orders authorizing surveillance as to specific targets. 
Instead, the Attorney General and the Director of National 
Intelligence (``DNI'') must submit to the FISA court annual 
certifications identifying categories of foreign intelligence 
targets that the Government seeks to surveil electronically.
    Government acquisitions of data under Section 702 are 
subject to a number of express limitations imposed by Congress. 
Acquisitions under Section 702 may not intentionally target any 
person known at the time of acquisition to be located in the 
United States. In addition, the statute contains an express 
prohibition against so-called ``reverse targeting,'' where the 
Government intentionally targets a person located outside the 
United States with the purpose of targeting a particular person 
reasonably believed to be located within the United States. 
Section 702 data collection also may not be used to 
intentionally target a United States person reasonably believed 
to be located outside the United States, nor may it be used to 
intentionally acquire any wholly domestic communications, i.e., 
communications as to which the sender and all intended 
recipients are known at the time of acquisition to be located 
in the United States. Finally, Section 702 expressly requires 
that all collection of data under this authority must be 
conducted in a manner consistent with the Fourth Amendment to 
the Constitution.
    Section 702 also requires that the Attorney General, in 
consultation with the DNI, adopt targeting and minimization 
procedures, as well as acquisition guidelines. The statute 
requires that the targeting procedures be ``reasonably 
designed'' to ensure that the Government does not collect 
wholly domestic communications, and that only persons outside 
the United States are targeted for surveillance. The 
minimization procedures adopted by the Attorney General must 
protect the identities of United States persons, as well as any 
nonpublic information concerning those individuals that might 
be acquired incidentally by the Government. Before it will 
approve a certification for Section 702 surveillance, the FISA 
court must review and approve the targeting and minimization 
procedures submitted by the Attorney General to ensure that 
they comply with both the statute and the Fourth Amendment. 
Although the Government is required to share with Congress any 
significant legal opinions by the FISA court related to Section 
702, these legal documents remain classified and have not been 
disclosed publicly, either in redacted or summary form.
    The acquisition guidelines are designed to ensure 
compliance with the express limitations in Section 702 
discussed above, including the prohibitions on ``reverse 
targeting'' and the acquisition of wholly domestic 
communications. Unlike the targeting and minimization 
procedures, however, the acquisition guidelines are not subject 
to FISA court approval.
    Sections 703 and 704 of FISA specifically deal with the 
targeting of United States persons reasonably believed to be 
located outside the United States, in order to collect foreign 
intelligence information. Under Section 703, the Government 
must demonstrate to the FISA court that there is probable cause 
that the target is a foreign power, an agent of a foreign 
power, or an officer or employee of a foreign power, before it 
can conduct electronic surveillance or acquire stored 
electronic communications or data in the United States. When 
the surveillance targets a U.S. person and is conducted 
overseas, and when 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,'' Section 704 requires a similar showing of probable 
cause that the target is a foreign power, agent of a foreign 
power, or an officer or employee of a foreign power. Notably, 
prior to enactment of Section 704, such overseas acquisitions 
targeting U.S. persons had been governed by Section 2.5 of 
Executive Order 12333, and the probable cause determinations 
had been made by the Attorney General. With enactment of 
Section 704, the Government's showing of probable cause is now 
subject to judicial review by the FISA court.
    In addition to the judicial review provided by the FISA 
court, Title VII of FISA contains a number of reporting and 
oversight provisions to help protect the privacy rights and 
civil liberties of U.S. persons, and to ensure compliance with 
the statute. Every six months, for example, the Attorney 
General and the DNI are required to provide Congress and the 
FISA court with an assessment of compliance with the targeting 
and minimization procedures, as well as compliance with the 
acquisition guidelines. The statute also requires that the head 
of each element of the intelligence community conducting an 
acquisition authorized under Section 702 conduct an annual 
review of the implementation of Section 702 surveillance. In 
addition, attorneys with the Department of Justice coordinate 
with the Office of the Director of National Intelligence 
(``ODNI'') and conduct on-site reviews of the Section 702 
surveillance activities of the relevant intelligence community 
agencies at least once every 60 days. These reviews include 
routine examinations of the targeting determinations made by 
the relevant agencies. To date, these internal assessments and 
reviews have not revealed any intentional attempt to circumvent 
or violate the legal requirements of Section 702.
    Under Section 702, the Inspector General of the Department 
of Justice and the inspector general of each element of the 
intelligence community authorized to acquire foreign 
intelligence information under Section 702 are authorized--but 
not required--to review certain aspects of the implementation 
of Section 702. Although the Committee has had the opportunity 
to review the reports of the inspector general for one of the 
relevant agencies and only just recently received the first 
compliance report from another, these reports do not cover the 
full scope of topics set forth in the statutory authorization 
for agency assessments. Moreover, there has been no 
comprehensive review of the implementation of Section 702 by an 
independent inspector general that covers all of the relevant 
agencies in the intelligence community. Such a comprehensive 
review that cuts across agency boundaries could be accomplished 
by the newly-created Inspector General of the Intelligence 
Community.

            D. NEED FOR REAUTHORIZATION OF TITLE VII OF FISA

    On February 8, 2012, the Attorney General and the Director 
of National Intelligence (DNI) sent a letter to the leadership 
of the Senate and the House of Representatives, urging Congress 
to reauthorize Title VII of FISA, and noting that 
reauthorization of this authority is ``the top legislative 
priority of the Intelligence Community.''\4\ Attorney General 
Holder and DNI Clapper asserted in that letter that 
``[i]ntelligence collection under Title VII has produced and 
continues to produce significant intelligence that is vital to 
protect the Nation against international terrorism and other 
threats.'' Along with the February 8, 2012 letter, the 
administration provided Congress with an unclassified 
background paper on Title VII that had been prepared by the 
Department of Justice and the Office of Director of National 
Intelligence.\5\ According to that unclassified background 
paper, Section 702 collection ``provides information about the 
plans and identities of terrorists'' and enables the 
intelligence community to ``collect information about the 
intentions and capabilities of weapons proliferators and other 
foreign adversaries who threaten the United States.'' The 
administration asserts that ``[f]ailure 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.''
---------------------------------------------------------------------------
    \4\February 8, 2012 letter from DNI Clapper and Attorney General 
Holder to Speaker Boehner, Majority Leader Reid, Rep. Pelosi, and 
Senator McConnell. (Attached in Appendix).
    \5\Id.
---------------------------------------------------------------------------

 E. CHANGES TO SUNSET AND OVERSIGHT PROVISIONS IN S. 3276, AS REPORTED

1. June 2015 sunset

    During its executive business meeting on July 19, 2012, the 
Committee adopted and reported favorably a substitute amendment 
to S. 3276 that was offered by Chairman Leahy and supported by 
Senator Feinstein, Chairman of the Senate Select Committee on 
Intelligence. As amended, the measure extends the sunset of 
Title VII of FISA until June 1, 2015. Extending the sunset for 
Title VII to 2015 will enable Congress to revisit these 
important provisions in a timely manner--which is particularly 
important since the work of the relevant inspectors general has 
not yet been fully completed. Indeed, as acknowledged in the 
Minority Views, the Inspector General for the Department of 
Justice did not issue its first compliance report on Section 
702 implementation until September 12, 2012, and that report 
was necessarily limited in scope. The alternative of a five-
year extension of the Title VII authorities, without any 
additional oversight or accountability improvements, and 
without the benefit of the complete work of the inspectors 
general, is ill-advised and inconsistent with this Committee's 
constitutional responsibility to provide vigorous and effective 
oversight.
    A June 2015 sunset date would also align with the sunset 
dates for the other expiring provisions of FISA, namely 
Sections 206 and 215 of the USA PATRIOT Act (the ``roving 
wiretap'' and ``business records'' provisions) and Section 
6001(a) of the Intelligence Reform and Terrorism Protection Act 
(the ``lone wolf'' provision). This alignment will provide 
Congress with the opportunity to consider these important 
surveillance provisions in a comprehensive manner. The Minority 
Views assert that aligning these sunsets would somehow cause 
operational problems because the intelligence community might 
be concerned that these intelligence tools would ``disappear in 
the middle of an operation,'' and, therefore, would forego 
using one of these provisions.\6\ The Minority Views overlook, 
however, that the FISA Amendments Act already provides for 
transition procedures that would ensure that any orders, 
authorizations, or directives issued prior to the sunset date 
would not just ``disappear,'' but rather would continue in 
effect until the date of the expiration of such order, 
authorization, or directive.\7\ Nothing in the measure reported 
by the Committee would change how those transition procedures 
operate, and the Committee has received no information from the 
intelligence community indicating any such concern.
---------------------------------------------------------------------------
    \6\Minority Views at 5.
    \7\Section 404(b)(1) of the FISA Amendments Act of 2008 (P.L. 110-
261).
---------------------------------------------------------------------------
    To the contrary, the Chairman of the Senate Select 
Committee on Intelligence has stated that none of the 
provisions in the substitute amendment--including the June 2015 
sunset--pose any operational problems. Indeed, an overwhelming 
bipartisan majority of the Senate Select Committee on 
Intelligence proposed an identical approach to aligning the 
FISA sunsets when that committee reported S. 1458, the 
Intelligence Authorization Act for Fiscal Year 2012. After 
approving the bill by a 14-1 bipartisan vote, the Senate 
Intelligence Committee stated in its report to the full Senate 
that ``alignment of all the remaining sunset dates in FISA--
those recently extended by Congress to June 1, 2015 and the 
sunset for Title VII--will provide Congress with an opportunity 
to examine comprehensively all expiring authorities at the same 
time rather than in a piecemeal fashion.''\8\
---------------------------------------------------------------------------
    \8\Senate Report 112-043, accompanying S. 1458, Intelligence 
Authorization Act for Fiscal Year 2012, at p. 15.
---------------------------------------------------------------------------

2. Improved oversight

    The measure reported by the Committee also requires the 
Inspector General of the Intelligence Community to conduct a 
comprehensive and independent review of the implementation of 
the FISA Amendments Act surveillance authorities, and expands 
and clarifies the scope of the inspector general reviews and 
annual reporting requirements.\9\ The Inspector General of the 
Intelligence Community would be required to review the 
procedures and guidelines developed by the intelligence 
community to implement Section 702, particularly with respect 
to the protection of the privacy rights of U.S. persons. In 
addition, the Inspector General of the Intelligence Community 
would be required to evaluate the limitations, procedures, and 
guidelines designed to protect U.S. person privacy rights, as 
well as an evaluation of the circumstances under which the 
contents of communications may be searched in order to review 
the communications of particular U.S. persons.
---------------------------------------------------------------------------
    \9\The assertion in the Minority Views that the reported bill 
``requires the Inspector Generals [sic] of the various Intelligence 
Community agencies to review the acquisition, use, and dissemination of 
Section 702 information'' is incorrect. See Minority Views at 4. The 
reported bill clarifies the scope of the existing authorization and 
requirements for the Inspectors General for the relevant agencies, but 
does not require any review of the acquisition, use, or dissemination 
of Section 702 information. Pursuant to Section 3(b)(2) of the reported 
bill, the Inspector General of the Intelligence Community (not the 
Inspectors General for the other relevant agencies) is authorized--but 
not required--to conduct such a review.
---------------------------------------------------------------------------
    Contrary to the argument in the Minority Views, the 
reported measure provides the Inspector General of the 
Intelligence Community with the authority to evaluate the 
specific procedures, guidelines, and limitations outlined in 
existing statute, not to develop privacy policy. Interestingly, 
in arguing against an independent review by the Inspector 
General of the Intelligence Community, the Minority Views 
inadvertently provides support for periodic sunsets of the 
Title VII provisions, noting that ``[i]n fact, the process of 
reauthorizing the legislation has enabled the Committee to 
investigate this very subject.''\10\
---------------------------------------------------------------------------
    \10\See Minority Views at 6.
---------------------------------------------------------------------------
    Finally, the Inspector General of the Intelligence 
Community would be required to make publicly available a 
summary of the findings and conclusions of any review conducted 
pursuant to this authority. Significantly, this provision does 
not require the Inspector General of the Intelligence Community 
to issue a full unclassified report, but rather it requires 
that a summary of the findings and conclusions be made publicly 
available ``in a manner consistent with the protection of the 
national security of the United States.'' As such, the repeated 
assertions in the Minority Views that the bill requires public 
disclosure of a heavily redacted ``report'' are plainly 
inaccurate.\11\
---------------------------------------------------------------------------
    \11\Id. In addition, the citation in footnote 16 of the Minority 
Views to Senate Report No. 112-174 is inapposite, as that report was 
issued by the Senate Select Committee on Intelligence, not the Senate 
Judiciary Committee, and contains no pertinent description of the IC IG 
review authorized by the measure reported by this Committee.
---------------------------------------------------------------------------

          III. History of the Bill and Committee Consideration


                      A. INTRODUCTION OF THE BILL

    The FAA Sunsets Extension Act of 2012 was introduced as S. 
3276 in the Senate Select Committee on Intelligence (SSCI). 
During a closed meeting on May 22, 2012, the SSCI considered 
the bill and amendments. The bill introduced in the SSCI 
provided for an extension of the Title VII authorities--without 
amendment--until June 1, 2017. That legislation was reported by 
the SSCI to the full Senate on June 7, 2012, with Report No. 
112-174.

                       B. COMMITTEE CONSIDERATION

    At the request of the Chairman and Ranking Member, the 
Committee was provided a classified briefing on Title VII of 
FISA by administration officials on June 26, 2012. On June 28, 
2012, Chairman Leahy and Ranking Member Grassley sent a letter 
to Majority Leader Harry Reid jointly requesting that the FAA 
Sunsets Extension Act of 2012, S. 3276, be referred 
sequentially to the Senate Judiciary Committee for 
consideration. The bill was placed on the Committee's agenda 
for consideration on July 12, 2012. Pursuant to the request of 
Ranking Member Grassley, the bill was held over for 
consideration the following week.
    On July 19, 2012, the Committee on the Judiciary considered 
S. 3276 during an open and public executive business meeting. 
Chairman Leahy offered a substitute amendment, described above, 
that was agreed to by the Committee. Senator Kyl and Senator 
Sessions later requested that they be recorded as having 
opposed adoption of the substitute amendment.
    The Committee then proceeded to consideration of a number 
of amendments that had been filed in advance of the July 19 
executive business meeting. With the exception of the 
substitute amendment offered by Chairman Leahy and the 
amendment offered jointly by Senators Lee and Durbin, none of 
the other amendments filed or offered by the Minority dealt 
with the substance of FISA, the FISA Amendments Act, or any 
other provision in Title 50. Instead, despite requests from 
both Chairman Leahy and Senator Feinstein that those amendments 
be offered at another time in order to facilitate the 
expeditious consideration of these important surveillance 
provisions, Republican Senators offered a series of amendments 
that Senator Feinstein described as ``extraneous''.
    Senator Kyl offered an amendment to create a new offense in 
Title 18 in order to prohibit material support with the intent 
to reward or facilitate international terrorism. The amendment 
would also increase the maximum penalties for existing material 
support crimes. The amendment was rejected by a roll call vote.
    The vote record is as follows:
    Tally: 8 Yeas, 10 Nays
    Yeas (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).
    Nays (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Senator Grassley offered an amendment to add the death 
penalty as a punishment to certain crimes involving weapons of 
mass destruction. Senator Feinstein offered a motion to table 
the amendment. The motion to table was accepted by a roll call 
vote.
    The vote record is as follows:
    Tally: 10 Yeas, 8 Nays
    Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).
    Senator Cornyn offered an amendment to require the 
President, within 30 days, to disclose to the Senate and House 
Committees on the Judiciary, Intelligence and Armed Services, 
the Department of Justice's Office of Legal Counsel memos 
discussing the legal basis for the targeted killing of United 
States citizens abroad. Senator Feinstein offered a motion to 
table the amendment. The motion to table was accepted by a roll 
call vote.
    The vote record is as follows:
    Tally: 10 Yeas, 8 Nays
    Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).
    Senator Lee offered an amendment to require the Government 
to obtain a warrant before querying the content of 
communications collected under the FISA Amendments Act with the 
purpose of finding a United States person's communications. The 
amendment was rejected by a roll call vote.
    The vote record is as follows:
    Tally: 3 Yeas, 15 Nays
    Yeas (3): Durbin (D-IL), Coons (D-DE), Lee (R-UT).
    Nays (15): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Whitehouse (D-RI), Klobuchar (D-MN), Franken 
(D-MN), Blumenthal (D-CT), Grassley (R-IA), Hatch (R-UT), Kyl 
(R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Coburn 
(R-OK).
    Senator Grassley offered an amendment to require the 
Department of Justice Inspector General to audit all Federal 
criminal wiretap applications in 2009 and 2010 in order to 
determine whether Department of Justice officials reviewed the 
contents of applications filed with the Federal courts. Senator 
Feinstein offered a motion to table the amendment. The motion 
to table was accepted by a roll call vote.
    The vote record is as follows:
    Tally: 10 Yeas, 8 Nays
    Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).
    Senator Cornyn offered an amendment to require the 
President, within seven days, to report to congressional 
leaders and the heads of the Senate and House intelligence 
committees any targeted killing of a United States citizen 
abroad. Senator Feinstein offered a motion to table the 
amendment. The motion to table was accepted by a roll call 
vote.
    The vote record is as follows:
    Tally: 10 Yeas, 8 Nays
    Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).
    Following the roll call vote on the Cornyn amendment, the 
Committee was unable to maintain a quorum and recessed subject 
to the call of the chair. At 2:15 p.m. on July 19, 2012, a 
sufficient quorum of the Committee assembled, and the Committee 
resumed the executive business meeting. The Committee then 
voted to report S. 3276, the FAA Sunsets Extension Act, as 
amended, favorably to the full Senate. The Committee proceeded 
by roll call vote as follows:
    Tally: 10 Yeas, 8 Nays
    Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), 
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
    Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ), 
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT), 
Coburn (R-OK).

               IV. Section-by-Section Summary of the Bill


Section 1. Short title

    This section provides that the legislation may be cited as 
the ``FAA Sunsets Extension Act of 2012.''

Section 2. Extension of FISA Amendments Act of 2008 Sunset

    This section extends the sunset on Title VII of the Foreign 
Intelligence Surveillance Act from December 31, 2012 to June 1, 
2015.

Section 3. Inspector general reviews

    This section clarifies the scope of the authorization for 
reviews by the inspectors general for agencies and elements of 
the intelligence community that implement Section 702 of FISA. 
It ensures that such reviews cover any agency or element that 
has targeting or minimization procedures approved by the FISA 
court pursuant to Section 702. Additionally, this section 
requires that under such inspectors general reviews, an 
accounting of the number of targets that are later determined 
to be United States persons be included. Current law only 
requires an accounting of the number of targets later 
determined to be located within the United States.
    This section also requires a new independent review by the 
recently established Inspector General of the Intelligence 
Community, which was created in 2010 (P.L. 111-259). The review 
requires the Inspector General of the Intelligence Community to 
report on the procedures and guidelines developed by the 
intelligence community to implement Section 702 of FISA, with 
respect to the protection of the privacy rights of United 
States persons. The Inspector General of the Intelligence 
Community review must include an evaluation of the limitations, 
procedures, and guidelines designed to protect United States 
person privacy rights, as well as an evaluation of the 
circumstances under which the contents of communications may be 
searched in order to review the communications of particular 
United States persons. The Inspector General of the 
Intelligence Community review is required to be submitted no 
later than December 31, 2014.
    Finally, this section requires an unclassified summary of 
the findings and conclusions of the Inspector General's report 
required in this section to be made publicly available.

Section 4. Annual reviews

    This section makes changes to the annual review 
requirements for those agencies and elements of the 
intelligence community that implement Section 702 of FISA. The 
changes made under this section are consistent with changes 
made to the inspector general provisions in Section 3. This 
section clarifies that annual reviews must be submitted by the 
head of any agency or element that has targeting or 
minimization procedures approved by the FISA court pursuant to 
Section 702. Additionally, this section requires that those 
annual reviews include an accounting of the number of targets 
that are later determined to be United States persons. Current 
law only requires an accounting of the number of targets later 
determined to be located within the United States.

              V. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 
3276, 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, September 14, 2012.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3276, the FAA 
Sunsets Extension 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.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 3276--FAA Sunsets Extension Act of 2012

    S. 3276 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 S. 3276 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. S. 3276 
would extend the provisions of that act through June 1, 2015 
(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 S. 3276 would 
apply to a relatively small number of additional offenders, 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.
    In addition, S. 3276 would require the Inspector General of 
the Intelligence Community to review certain procedures and 
guidelines to protect the privacy rights of persons in the 
United States and prepare a report based on that review. Based 
on information from the intelligence community, CBO estimates 
that any additional costs to complete those activities would 
not be significant in any year.
    Because those prosecuted and convicted under S. 3276 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 require providers of electronic communication 
services to furnish information. The bill also would extend an 
existing mandate by exempting electronic communication service 
providers from liability when they comply with an order to 
furnish information. CBO cannot determine whether the costs to 
electronic communication service providers to furnish 
information as required by the bill or the forgone damages of 
individuals that sue such providers 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 to provide information, so the costs to 
intergovernmental entities would be small. The bill also would 
impose a mandate by extending an existing preemption of state 
and local liability laws. 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 July 19, 2012, CBO transmitted a cost estimate for S. 
3276, the FISA Amendments Act Reauthorization Act of 2012, as 
reported by the Senate Select Committee on Intelligence on June 
7, 2012. That version of the bill would not require reviews or 
reports by the Inspector General of the Intelligence Community; 
otherwise, the bills are similar and the cost estimates are the 
same.
    On July 2, 2012, CBO transmitted a cost estimate for H.R. 
5949, the FISA Amendments Act Reauthorization Act of 2012, as 
ordered reported by the House Committee on the Judiciary on 
June 19, 2012. On July 19, 2012, CBO transmitted a cost 
estimate for H.R. 5949 as reported by the House Permanent 
Select Committee on Intelligence on June 28, 2012. CBO 
estimated that both versions of H.R. 5949 would have no 
significant cost to the federal government.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(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.

                    VI. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 3276.

                            VII. Conclusion

    The FAA Sunsets Extension Act of 2012, S. 3276, was 
reported favorably with an amendment to the Senate by the 
Committee on the Judiciary. The bill, as amended, preserves 
important surveillance authorities for the collection of 
foreign intelligence information while enhancing oversight and 
reporting requirements. The reported measure contains a June 
2015 sunset that aligns with the sunset dates for other 
important provisions of FISA, including the business records 
provision, the roving wiretap provision, and the ``lone wolf'' 
provision. A shorter sunset period ensures appropriate 
Congressional oversight of the implementation of the FISA 
Amendments Act. Additionally, the legislation contains new 
reporting requirements on the implementation of the 
surveillance authorities with respect to the privacy rights of 
United States persons. A new review by the Inspector General of 
the Intelligence Community that spans the entire intelligence 
community would provide valuable information to Congress as it 
performs its oversight role. Moreover, an unclassified summary 
of the findings of this comprehensive report must be made 
publicly available in order to bolster accountability and 
transparency. Because the current surveillance authorities are 
due to expire at the end of this year, the Committee recommends 
swift action on S. 3276, as reported.

                  VIII. Additional and Minority Views

                              ----------                              


 ADDITIONAL VIEWS FROM SENATOR DURBIN AND MINORITY VIEWS FROM SENATOR 
                                  LEE

    It is unclear how many communications involving American 
citizens are collected, stored, and analyzed by the government 
under Section 702 of the Foreign Intelligence Surveillance Act 
(``FISA''). However large this number may be, we believe there 
should be meaningful protections when the government searches 
through such communications looking for information on 
individual American citizens. Otherwise, by means of these so-
called ``backdoor'' searches, the government could potentially 
conduct significant warrantless surveillance on American 
persons. Current administration of the FISA Amendments Act thus 
implicates core Fourth Amendment values.
    The amendment we introduced would clarify that Section 702 
of FISA does not permit the government to search the contents 
of communications acquired pursuant to Section 702 for the 
purpose of finding communications of a particular United States 
person. In effect, the amendment would require that the 
government obtain a warrant before performing queries within 
the communications it has collected under Section 702 for the 
purpose of finding an American person's communications. The 
amendment excludes from the warrant requirement instances in 
which an emergency authorization has been obtained, the life or 
physical safety of the American person targeted by the search 
is in danger and the search is for the purpose of assisting 
that person, or where the United States person targeted in the 
search has consented to that search. The amendment is identical 
to that offered by Senators Wyden and Udall (CO) during 
consideration of the bill by the Select Committee on 
Intelligence.
    FISA requires that the government obtain a FISA Court 
warrant any time it seeks to conduct surveillance on a U.S. 
person. Indirect surveillance of U.S. persons by means of 
backdoor searches should be no different. No one disputes that 
the government may have a legitimate need to conduct queries of 
information collected under Section 702, and we would think no 
one is surprised that the government asserts that a warrant 
requirement would be burdensome. Indeed, that is the precise 
nature of a warrant requirement--to require the government to 
articulate and justify the need for its intrusion on the 
privacy of U.S. persons. Whether under Title III or FISA more 
generally, the government will often have legitimate needs to 
conduct searches. But no one would suggest that the existence 
of a legitimate need for information obviates the need for the 
government to obtain a warrant in those contexts, and we find 
the assertion of this argument with respect to Section 702 
similarly unpersuasive.

                                    Dick Durbin.
                                   Michael S. Lee.

  MINORITY VIEWS OF SENATORS GRASSLEY, HATCH, KYL, SESSIONS, GRAHAM, 
                           CORNYN AND COBURN

             Expiring Provisions Should Be Extended to 2017

    On February 8, 2012, Attorney General Eric Holder and 
Director of National Intelligence James Clapper wrote to 
Speaker of the House Boehner, Majority Leader Reid, Minority 
Leader Pelosi, and Minority Leader McConnell urging Congress to 
reauthorize Title VII of the Foreign Intelligence Surveillance 
Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA) 
which is set to expire at the end of this year. In that letter, 
Attorney General Holder and Director Clapper wrote, 
``Intelligence collection under Title VII has produced and 
continues to produce significant intelligence that is vital to 
protect the nation against international terrorism and other 
threats.''\1\ The letter described the critical importance of 
Title VII, including Section 702, which authorizes surveillance 
of non-U.S. persons located overseas who are of foreign 
intelligence value. The authors added that ``[r]eauthorizing 
this authority is the top legislative priority of the 
Intelligence Community.''\2\
---------------------------------------------------------------------------
    \1\Letter from James R. Clapper, Director of National Intelligence, 
and Eric Holder, Attorney General, to John Boehner, Speaker of the 
House, Harry Reid, Senate Majority Leader, Nancy Pelosi, House Minority 
Leader, and Mitch McConnell, Senate Minority Leader (February 8, 2012) 
(on file with U.S. Senate Judiciary Committee minority staff).
    \2\ Id.
---------------------------------------------------------------------------
    Title VII of FISA includes several valuable tools, 
described more fully below, which allow the Intelligence 
Community to quickly gather information on terrorist threats 
and intelligence leads. Most notably, Section 702 authorizes, 
with approval from the Foreign Intelligence Surveillance Court 
(FISC), electronic surveillance of non-U.S. persons located 
overseas, but without the need for individualized orders for 
every target of the surveillance, as is required for 
surveillance of anyone inside the United States. According to 
the Director of National Intelligence and Attorney General, 
Section 702 gives the Intelligence Community the flexibility to 
rapidly respond to a wide variety of threats against the United 
States.\3\ The Attorney General and the Director of National 
Intelligence warned that failure to reauthorize Title VII of 
FISA would ``result in a loss of significant intelligence and 
the ability of the Intelligence Community to respond quickly to 
new threats and intelligence opportunities.''\4\
---------------------------------------------------------------------------
    \3\ Id.
    \4\ Id.
---------------------------------------------------------------------------
    On May 22, 2012, in a 13-2 bipartisan vote, the Senate 
Select Committee on Intelligence (SSCI) reported out S. 3276, 
FAA Sunsets Extension Act of 2012, without amendment. The bill 
does exactly what the Administration requested; namely, it 
provides a clean reauthorization through June 1, 2017. It 
simply replaces the current date of December 31, 2012 in the 
statute with the new date. In reporting the bill to the Senate 
floor, the SSCI stated that Title VII ``has been implemented 
with attention to protecting the privacy and civil oversight of 
U.S. persons, and has been subject to extensive oversight by 
the Executive branch, the FISC, as well as Congress.''\5\
---------------------------------------------------------------------------
    \5\FAA Sunsets Extension Act of 2012, S. Rep. No. 112-174, at 2 
(2012) (majority report).
---------------------------------------------------------------------------
    In reaching its conclusion, the SSCI found that:
           Section 702 of FISA is narrowly tailored to 
        ensure that it may only be used to target non-U.S. 
        persons located abroad;
           Congress recognized at the time the FISA 
        Amendments Act was enacted, it was not possible to 
        collect information from a foreign target without also 
        collecting information about people with whom that 
        target was communicating. Therefore, Congress mandated 
        that the Attorney General adopt, and the FISC approve, 
        procedures to minimize the acquisition, retention, and 
        dissemination of information concerning U.S. persons.
           These minimization procedures, along with 
        the numerous reporting requirements already in 
        existence under FISA ``enable the Committee to evaluate 
        the extent to which [minimization] procedures are 
        effective in protecting the privacy and civil liberties 
        of U.S. persons.''
           The Inspector Generals of the National 
        Security Agency (NSA) and the Intelligence Community 
        are currently conducting a review to determine whether 
        it is feasible to estimate the number of people located 
        in the U.S. whose communications may have been 
        incidentally collected under Section 702 of FISA, and 
        therefore no amendments on this subject are 
        necessary.\6\
---------------------------------------------------------------------------
    \6\Id. at 8.
---------------------------------------------------------------------------
    Chairman Feinstein issued Additional Views to the 
Committee's report, explaining why the SSCI rejected several 
amendments which sought to shorten the sunset provision and add 
additional burdens on the Intelligence Community. The Chairman 
wrote that after several hearings, numerous staff meetings with 
Intelligence Community representatives, and reviews of 
classified reports and FISC documents as part of its oversight 
function, the SSCI concluded that existing FAA provisions were 
adequate to protect the privacy and civil liberties of U.S. 
persons.
    SSCI Chairman Feinstein concluded that:

        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.\7\
---------------------------------------------------------------------------
    \7\Id. at 9.

    We agree with Chairman Feinstein's statement. A clean 
version of S. 3276 (i.e., without amendment) would simply 
extend the sunset date from December 31, 2012 to June 1, 2017. 
That is the only change that should be made to the statute. Our 
oversight of the implementation of the statute has found no 
evidence that it has been intentionally misused or that more 
oversight is needed. A clean bill would allow the Intelligence 
Community to continue utilizing these valuable tools against 
potential terrorists or other intelligence targets without 
interruption or delay and will provide the Intelligence 
Community with much needed certainty and stability.
    Title VII provides not only valuable intelligence tools but 
also privacy protections. It was designed to facilitate the 
collection of intelligence information about non-U.S. persons 
abroad while balancing the Fourth Amendment rights of U.S. 
persons whose communications are incidentally collected in the 
course of such surveillance. No changes are therefore necessary 
to the statute.
Section 702
    As noted above, Section 702 authorizes, with approval of 
the FISC, electronic surveillance of non-U.S. persons located 
overseas, but without the need for individualized orders for 
every target of the surveillance.\8\ Section 702 specifically 
prohibits targeting U.S. persons, acquiring wholly domestic 
communications, or targeting someone outside the U.S. with the 
intent to collect information on a target inside the U.S. 
(known as ``reverse-targeting''). Thus, since the target of any 
surveillance is a non-U.S. person, the only way that a U.S. 
citizen's privacy is potentially compromised is if that U.S. 
person is in contact with the foreign target. In essence, the 
surveillance only incidentally affects U.S. persons. Section 
702 also requires that the government demonstrate to the FISC 
that it has ``targeting procedures'' that are designed to weed 
out intentional collection of communications of anyone located 
inside the United States, that the Intelligence Community uses 
``minimization procedures'' that restrict the use of any 
information about U.S. persons that is incidentally collected, 
and that it has ``acquisition guidelines'' that ensure that the 
statutory limits on collection are obeyed.
---------------------------------------------------------------------------
    \8\50 U.S.C. Sec. 1881a.
---------------------------------------------------------------------------
    Under Section 702, the FISC reviews and approves annual 
certifications from the Attorney General and Director of 
National Intelligence about collection of information on 
categories of foreign intelligence targets, what procedures the 
Intelligence Community will use to accomplish this 
surveillance, how they will target subjects for surveillance, 
and how the Intelligence Community will use the information. 
This format allows the FISC to review on whom and how the 
Intelligence Community is conducting surveillance while also 
protecting the constitutional rights of U.S. persons.
    In addition, FISA requires that the Attorney General and 
Director of National Intelligence conduct semi-annual 
assessments of the Intelligence Community's compliance with the 
targeting and minimization procedures and the acquisition 
guidelines and report to Congress on the results of their 
audits. Separately, they internally review compliance every 60 
days. Furthermore, the statute authorizes the Inspector General 
of the Department of Justice to review the program at any time 
and requires that significant opinions of the FISC and the FISC 
appellate court be provided to Congress.
    The combination of the statutory limitations on collection, 
targeting and minimization procedures, and acquisition 
guidelines, FISC review of those procedures and guidelines, and 
compliance oversight by the Administration and Congress, ensure 
that the rights of U.S. persons are sufficiently protected when 
their communications are incidentally collected in the course 
of targeting non-U.S. persons located abroad.
Sections 703 and 704
    Sections 703\9\ and 704\10\ cover electronic surveillance 
or searches of stored communications of U.S. persons who are 
located abroad, when conducted in the United States, and other 
searches of U.S. persons abroad, respectively. They require 
that the government obtain authorization from the FISC for such 
searches, and such authorization is dependent on 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.
---------------------------------------------------------------------------
    \9\50 U.S.C. 1881b.
    \10\50 U.S.C. 1881c.
---------------------------------------------------------------------------

                        AMENDMENTS IN COMMITTEE

    Despite the Administration's desire to pass a clean bill 
with an extension to 2017, and the SSCI's thoughtful 
conclusions in reporting such a bill, the Chairman proceeded 
with a substitute amendment. The substitute amendment is 
unnecessary. It will simply delay passage of a critical 
national security bill and provide uncertainty for our national 
security operators in the field. Indeed, the substitute creates 
a risk that the statute will be allowed to sunset, causing 
operational problems and the loss of a valuable and productive 
national security tool.
    The substitute amendment: (1) seeks to shorten the sunset 
provision from June 1, 2017 to June 1, 2015; (2) requires the 
Inspector Generals of the various Intelligence Community 
agencies to review the acquisition, use, and dissemination of 
Section 702 information; (3) requires the Inspector General of 
the Intelligence Community to review the acquisition, use, and 
dissemination of Section 702 information and evaluate its 
impact on the privacy rights of U.S. citizens; and (4) requires 
the Inspector General to produce and publicly release an 
unclassified report of its findings.
    First of all, by shortening the extension of the Title VII 
provisions to less than three years, Congress fails to provide 
needed certainty and predictability to law enforcement and 
counterterrorism officials. The Majority argues that in 
shortening the sunset to June 1, 2015, it provides ``Congress 
with the opportunity to consider these important surveillance 
provisions in a comprehensive manner'' with other expiring 
provisions of FISA--sections 206 and 215 of the USA PATRIOT Act 
(the ``roving wiretap'' and ``business records'' provisions) 
and section 6001(a) of the Intelligence Reform and Terrorism 
Protection Act (the ``lone wolf'' provision).\11\ While 
addressing the extension of these statutes together may offer 
some convenience, it is problematic.
---------------------------------------------------------------------------
    \11\Id. at 6-7.
---------------------------------------------------------------------------
    By aligning the expiration of the FAA with expiring 
provisions of the USA PATRIOT Act, we run the risk of failing 
to authorize not one, but two sets of vital national security 
tools. Such risks and unpredictability factor into how 
intelligence and counter-terrorism operations are designed. If 
those charged with protecting our national security are 
concerned with whether such a valuable tool will disappear in 
the middle of an operation, they may choose to forego the 
utilization of the tool and apply their resources elsewhere by 
using less effective, but more stable techniques. Further, by 
focusing on a host of national security tools at once, as 
opposed to in alternating authorization cycles, it limits the 
focus and scrutiny that is placed on each individual provision, 
potentially weakening the current level of oversight provided 
to these tools.
    The majority's report itself provides an example of the 
danger of attempting to reauthorize differing tools at the same 
time. The report--deliberately or not--obfuscates the crucial 
differences between Title VII of FISA and other parts of the 
statute. In describing the activities conducted under Section 
702, the report uses the loaded phrase, ``domestic electronic 
surveillance.''\12\ This phrase implies that the U.S. 
government intentionally collects, without a warrant, domestic 
communications of U.S. persons under Section 702. It does not. 
The Section 702 program targets non-U.S. persons who are 
located abroad. At the most, it would only incidentally collect 
an international communication of a U.S. person if that U.S. 
person happened to communicate with a targeted person who is 
outside the United States. Nevertheless, the canard that Title 
VII is a ``domestic surveillance program'' directed at U.S. 
citizens and not requiring warrants, in violation of the 
Constitution, is widespread. Title VII has a different purpose 
and legal basis than those domestic surveillance provisions 
authorized elsewhere in the statute. Therefore, mixing together 
discussion of these different tools only confuses and 
complicates dispassionate oversight of each one.
---------------------------------------------------------------------------
    \12\Id. at 4.
---------------------------------------------------------------------------
    Neither this Committee, the SSCI, nor the Administration 
has found instances where the expiring provisions have been 
intentionally or systematically misused. As the SSCI Chairman 
reported in the Committee report, ``Through four years of 
oversight, the Committee has not identified a single case where 
a government official engaged in a willful effort to circumvent 
or violate the law.''\13\ In fact, Chairman Leahy himself has 
admitted, ``I do not believe that there is any evidence that 
the law has been abused, or that the communications of U.S. 
persons are being intentionally targeted.''\14\ Given the 
robust oversight in place, a shortened sunset date aligning 
multiple national security authorizations creates instability, 
provides no benefits, and potentially weakens the level of 
scrutiny the provisions are given in alternating authorization 
cycles.
---------------------------------------------------------------------------
    \13\Id. at 7.
    \14\Senator Patrick J. Leahy, ``Opening Statement, Executive 
Business Meeting,'' (July 19, 2012), available at: http://
www.leahy.senate.gov/press/senate-judiciary-committee-approves-leahy-
authored-substitute-amendment-to-reauthorization-of-fisa-amendments-
act.
---------------------------------------------------------------------------
    Secondly, we believe that the law as currently authorized 
contains significant oversight and review by the various 
Inspectors General. Section 702(1)(2) specifically authorizes 
``[t]he Inspector General of the Department of Justice and the 
Inspector General of each element of the intelligence community 
authorized to acquire foreign intelligence information under 
[the FAA]'' the authority to review compliance with the 
law.\15\ Nowhere in this authorization are the Inspectors 
General limited to a single review. In fact, while the 
Inspector General for the Department of Justice just issued the 
first compliance report on Section 702 on September 12, 2012, 
nothing in the statute precludes the Inspector General from 
continuing to review compliance with Section 702 in the future.
---------------------------------------------------------------------------
    \15\50 U.S.C. Sec. 1881a(1)(2) (2006).
---------------------------------------------------------------------------
    The current authorization for the Inspectors General is in 
line with the general mission of Inspectors General, namely, 
identifying fraud, waste, and abuse within a government agency. 
The substitute amendment would deviate from this current 
authorization and would instead elevate the role of the 
Inspectors General from independent watchdog to that of 
potential policy maker. For example, the substitute amendment 
would delegate decisions about what constitutes ``privacy'' to 
the Inspectors General authorizing them to make value judgments 
about the worth of the Section 702 foreign intelligence 
collected as compared to the Inspector General's view of 
privacy interests. The amendment never defines ``privacy,'' an 
inherently vague and broad term that would be left to the 
Inspector General to define as he preferred based on his 
understanding of its meaning. This is beyond both the authority 
and capability of an Inspector General. Policy analysis should 
be left to policymakers. In particular, determining the 
relative worth of intelligence information with potentially 
competing concepts of ``privacy'' should be the role of 
Congress. We cannot outsource our responsibility for making 
such determinations to others. We have all the information 
necessary to make such determinations, and leaving it to 
someone else is abandoning our responsibilities. In fact, the 
process of reauthorizing the legislation has enabled the 
Committee to investigate this very subject.
    Thirdly, the substitute amendment requires the Inspector 
General to issue an ``unclassified summary of the findings of 
[the] comprehensive report''\16\ the amendment authorizes. 
While we agree that transparency is the hallmark of a good and 
open government, national security programs such as those 
authorized under FAA deal with our nation's most sensitive 
information used to protect American lives. If the Inspector 
General were to issue an unclassified report based upon a 
review of classified information, the resulting report would be 
so heavily redacted that it would be incomprehensible and of 
little use to those who would seek to review it. There would be 
no context, no facts, and no application of facts to law. Such 
a report would be of no value or utility to the American people 
because the basis of any conclusion would be redacted. The 
report would raise more questions than it answers--which is 
perhaps the ultimate goal of such a provision.
---------------------------------------------------------------------------
    \16\FAA Sunsets Extension Act of 2012, S. Rep. No. 112-174, at 11 
(2012) (majority report).
---------------------------------------------------------------------------
    There were a number of additional amendments offered by 
Minority members of the Committee that were debated and voted 
on during the Committee's executive business meeting. These 
amendments dealt with important national security topics 
including the criminal penalties associated with weapons of 
mass destruction, criminalizing rewards for facilitating 
international terrorism, disclosure of memoranda authorizing 
the targeted killing of United States citizens abroad, an audit 
of federal criminal wiretap applications, and Congressional 
notification for targeted killing of United States citizens 
abroad. Unfortunately, aside from amendments offered by Senator 
Kyl and Senator Lee, all amendments offered by the Minority 
members were subject to motions to table. This decision by 
members of the Majority to move to table amendments offered by 
the Minority is troubling and a break from the usual Committee 
practice to vote on amendments dealing with complex and 
difficult subject matters.
    Instead, Majority members argued that amendments should be 
germane and relevant to the underlying legislation in order to 
obtain an up or down vote. Each of these amendments dealt with 
important and pressing national security matters and should 
have received an open and fair debate. At least one of these 
amendments had previously passed the Committee on a bipartisan 
voice vote during debate of the extension of expiring 
provisions of the USA PATRIOT Act.\17\ It is imperative that 
these issues receive an open and fair debate in the Committee 
and it is concerning that these amendments were subjected to a 
germaneness and relevance standard, especially given the fact 
that the Majority Leader has routinely prevented Minority 
senators from offering and debating important topics on the 
Senate floor.
---------------------------------------------------------------------------
    \17\See The USA PATRIOT Act Sunset Extension Act of 2011, S. Rep. 
No. 112-13, at 21 (2011) (adopting an amendment by Senator Grassley 
adding the death penalty as a punishment for certain crimes involving 
weapons of mass destruction).
---------------------------------------------------------------------------
    Finally, it is worth noting that the Majority's Committee 
Report fails to accurately detail the events that transpired on 
the afternoon of July 19, 2012, when the vote on final passage 
of S. 3276, the FAA Sunsets Extension Act, as amended, 
occurred. The Majority's description notes that the final tally 
of votes was 10 Yeas and 8 Nays. However, during the initial 
roll call vote the final tally was initially 9 Yeas and 9 Nays, 
with Senator Durbin voting against S. 3276 as amended.\18\ 
However, after the Chairman asked if any member wished to 
change his or her vote, Senator Durbin stated that while 
Chairman Leahy's bill was a ``positive step forward'' and still 
``needs a lot of work,'' he ultimately changed his vote in 
order for the bill to be reported to the Senate floor.\19\
---------------------------------------------------------------------------
    \18\See Joanna Anderson, Surveillance Authority Extension Gets 
Senate Panel's Support, Cong. Quarterly, July 19, 2012, available at 
http://www.cq.com/doc/committees-
2012071900298886?wr=eFF6U1QqRXM3azFlbndPUmNaS3c2dw (noting that 
``Durbin initially voted against advancing the bill to the full Senate, 
but [later] relented . . .'').
    \19\Id.
---------------------------------------------------------------------------

                               CONCLUSION

    We agree with the thirteen bi-partisan members of the SSCI 
that this important piece of national security legislation 
should pass without amendment and without delay. We also agree 
with the 301 members of the House of Representatives who voted 
on September 12, 2012, to extend the FAA, without amendment, 
through December 31, 2017.\20\ We disagree with substitute 
amendment adopted by the Majority as it makes unnecessary 
changes to the statute that do little more than risk the 
necessary reauthorization of these authorities. Simply put, the 
FAA has and will continue to provide vital foreign intelligence 
information necessary for the Nation's security. Extending the 
expiring provisions without amendment provides the operational 
continuity that agents on the ground, at home and abroad, need 
and deserve.
---------------------------------------------------------------------------
    \20\FISA Amendments Act Reauthorization Act of 2012, H.R. 5949, 
112th Cong. (2012).
---------------------------------------------------------------------------
                                   Charles E. Grassley.
                                   Orrin G. Hatch.
                                   Jon Kyl.
                                   Jeff Sessions.
                                   Lindsey Graham.
                                   John Cornyn.
                                   Tom Coburn.

       IX. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S.3276, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 50--WAR AND NATIONAL DEFENSE

           *       *       *       *       *       *       *


           CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE ACT

SUBCHAPTER VI--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES


Section 702. Procedures for targeting certain persons outside the 
                    United States other than United States persons.

    (1) Assessments and Reviews.--
      (1) Semiannual Assessment.--Not less frequently than once 
every 6 months, the Attorney General and Director of National 
Intelligence shall assess compliance with the targeting and 
minimization procedures adopted in accordance with subsections 
(d) and (e) and the guidelines adopted in accordance with 
subsection (f) and shall submit each assessment to--
                  (A) the Foreign Intelligence Surveillance 
                Court; and
                  (B) consistent with the Rules of the House of 
                Representatives, the Standing Rules of the 
                Senate, and Senate Resolution 400 of the 94th 
                Congress or any successor Senate resolution--
                          (i) the congressional intelligence 
                        committees; and
                          (ii) the Committees on the Judiciary 
                        of the House of Representatives and the 
                        Senate.
      (2) Agency Assessment.--The Inspector General of the 
Department of Justice and the Inspector General of each element 
of the intelligence community [authorized to acquire foreign 
intelligence information under subsection (a)] with targeting 
or minimization procedures approved under this section, with 
respect to the department or element of such Inspector 
General--
                  (A) are authorized to review compliance with 
                the targeting and minimization procedures 
                adopted in accordance with subsections (d) and 
                (e) and the guidelines adopted in accordance 
                with subsection (f);
                  (B) with respect to acquisitions authorized 
                under subsection (a), shall review the number 
                of disseminated intelligence reports containing 
                a reference to a United States-person identity 
                and the number of United States-person 
                identities subsequently disseminated by the 
                element concerned in response to requests for 
                identities that were not referred to by name or 
                title in the original reporting;
                  (C) with respect to acquisitions authorized 
                under subsection (a), shall review the number 
                of targets that were later determined to be 
                United States persons or located in the United 
                States, and to the extent possible, whether 
                communications of such targets were reviewed; 
                and
                  (D) shall provide each [such review] review 
                conducted under this paragraph to--
                          (i) the Attorney General;
                          (ii) the Director of National 
                        Intelligence; [and]
                          (iii) the Inspector General of the 
                        Intelligence Community; and
                          [(iii)] (iv) consistent with the 
                        Rules of the House of Representatives, 
                        the Standing Rules of the Senate, and 
                        Senate Resolution 400 of the 94th 
                        Congress or any successor Senate 
                        resolution--
                          (I) the congressional intelligence 
                        committees; and
                          (II) the Committees on the Judiciary 
                        of the House of Representatives and the 
                        Senate.
          (3) Inspector general of the intelligence community 
        review.--
                  (A) In general.--The Inspector General of the 
                Intelligence Community is authorized to review 
                the acquisition, use, and dissemination of 
                information acquired under subsection (a) in 
                order to review compliance with the targeting 
                and minimization procedures adopted in 
                accordance with subsections (d) and (e) and the 
                guidelines adopted in accordance with 
                subsection (f), and in order to conduct the 
                review required by subparagraph (B).
                  (B) Mandatory review.--The Inspector General 
                of the Intelligence Community shall review the 
                procedures and guidelines developed by the 
                Intelligence Community to implement this 
                section, with respect to the protection of the 
                privacy rights of United States persons, 
                including--
                          (i) an evaluation of the limitations 
                        outlined in subsection (b), the 
                        procedures approved in accordance with 
                        subsections (d) and (e), and the 
                        guidelines outlined in subsection (f), 
                        with respect to the protection of the 
                        privacy rights of United States 
                        persons; and
                          (ii) an evaluation of the 
                        circumstances under which the contents 
                        of communications acquired pursuant to 
                        subsection (a) may be searched in order 
                        to review the communications of 
                        particular United States persons.
                  (C) Consideration of other reviews and 
                assessments.--The review conducted under 
                subparagraph (B) should take into 
                consideration, to the extent relevant and 
                appropriate, any reviews and assessments that 
                have been completed or are being undertaken 
                under this section.
                  (D) Report.--Not later than December 31, 
                2014, the Inspector General of the Intelligence 
                Community shall submit a report regarding the 
                review conducted under subparagraph (B) to--
                          (i) the Attorney General;
                          (ii) the Director of National 
                        Intelligence; and
                          (iii) consistent with the Rules of 
                        the House of Representatives, the 
                        Standing Rules of the Senate, and 
                        Senate Resolution 400 of the 94th 
                        Congress or any successor Senate 
                        resolution--
                                  (I) the congressional 
                                intelligence committees; and
                                  (II) the Committees on the 
                                Judiciary of the House of 
                                Representatives and the Senate.
                  (E) Public reporting of findings and 
                conclusions.--In a manner consistent with the 
                protection of the national security of the 
                United States, and in unclassified form, the 
                Inspector General of the Intelligence Community 
                shall make publicly available a summary of the 
                findings and conclusions of the review 
                conducted under subparagraph (B).
          (4) [(3)] Annual Review.--
                  (A) Requirement to Conduct.--The head of each 
                element of the intelligence community 
                [conducting an acquisition authorized under 
                subsection (a)] with targeting or minimization 
                procedures approved under this section shall 
                conduct an annual review to determine whether 
                there is reason to believe that foreign 
                intelligence information has been or will be 
                obtained from [the acquisition] acquisitions 
                authorized under subsection (a). [The annual 
                review] As applicable, the annual review shall 
                provide, with respect to acquisitions 
                authorized under subsection (a)--
                          (i) an accounting of the number of 
                        disseminated intelligence reports 
                        containing a reference to a United 
                        States-person identity;
                          (ii) an accounting of the number of 
                        United States-person identities 
                        subsequently disseminated by that 
                        element in response to requests for 
                        identities that were not referred to by 
                        name or title in the original 
                        reporting;
                          (iii) the number of targets that were 
                        later determined to be United States 
                        persons or located in the United States 
                        and, to the extent possible, whether 
                        communications of such targets were 
                        reviewed; and
                          (iv) a description of any procedures 
                        developed by the head of such element 
                        of the intelligence community and 
                        approved by the Director of National 
                        Intelligence to assess, in a manner 
                        consistent with national security, 
                        operational requirements and the 
                        privacy interests of United States 
                        persons, the extent to which the 
                        acquisitions authorized under 
                        subsection (a) acquired the 
                        communications of United States 
                        persons, and the results of any such 
                        assessment.

           *       *       *       *       *       *       *


                      FISA Amendments Act of 2008


                         Public Law No. 110-261


                          50 U.S.C. 1881 note


Section 403. Repeals.

    (b) FISA Amendments Act of 2008.--
          (1) In general.--Except as provided in section 404, 
        effective [December 31, 2012] June 1, 2015, 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] June 1, 2015--
                  (A) the table of contents in the first 
                section of such Act (50 U.S.C. 1801 et seq.) is 
                amended by striking the items related to title 
                VII;
                  (B) except as provided in section 404, 
                section 601(a)(1) of such Act (50 U.S.C. 
                1871(a)(1)) is amended to read as such section 
                read on the day before the date of the 
                enactment of this Act; and
                  (C) except as provided in section 404, 
                section 2511(2)(a)(ii)(A) of title 18, United 
                States Code, is amended by striking ``or a 
                court order pursuant to section 704 of the 
                Foreign Intelligence Surveillance Act of 
                1978''.

Section 404. Transition Procedures.

    (b) Transition Procedures for FISA Amendments Act of 2008 
Provisions.
          (1) Orders in effect on [december 31, 2012] June 1, 
        2015.--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.

           *       *       *       *       *       *       *




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