[Senate Report 114-277]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 504
114th Congress     }                                   {        Report
                                 SENATE
 2d Session        }                                   {       114-277

======================================================================
 
          INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2017

                                _______
                                

                 June 15, 2016.--Ordered to be printed

                                _______
                                

         Mr. Burr, from the Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 3017]

    The Select Committee on Intelligence, having considered an 
original bill (S. 3017) to authorize appropriations for fiscal 
year 2017 for intelligence and intelligence-related activities 
of the United States Government, the Community Management 
Account, and the Central Intelligence Agency Retirement and 
Disability System, and for other purposes, reports favorably 
thereon and recommends that the bill do pass.

                Classified Annex to the Committee Report

    On February 9, 2016, acting pursuant to Section 364 of the 
Intelligence Authorization Act for Fiscal Year 2010 (Public Law 
111 259), the Director of National Intelligence (DNI) publicly 
disclosed that the President's aggregate request for the 
National Intelligence Program for Fiscal Year 2017 is $53.5 
billion. Other than for limited unclassified appropriations, 
primarily the Intelligence Community Management Account, the 
classified nature of United States intelligence activities 
precludes any further disclosure, including by the Committee, 
of the details of its budgetary recommendations. Accordingly, 
the Committee has prepared a classified annex to this report 
that contains a classified Schedule of Authorizations. The 
classified Schedule of Authorizations is incorporated by 
reference in the Intelligence Authorization Act (the ``Act'') 
and has the legal status of public law. The classified annex is 
made available to the Committees on Appropriations of the 
Senate and the House of Representatives and to the President. 
It is also available for review by any Member of the Senate 
subject to the provisions of Senate Resolution 400 of the 94th 
Congress (1976).

              Section-by-Section Analysis and Explanation

    The following is a section-by-section analysis and 
explanation of the Intelligence Authorization Act for Fiscal 
Year 2017 that is being reported by the Committee.

                    TITLE I--INTELLIGENCE ACTIVITIES

Section 101. Authorization of appropriations

    Section 101 lists the United States Government departments, 
agencies, and other elements for which the Act authorizes 
appropriations for intelligence and intelligence-related 
activities for Fiscal Year 2017.

Section 102. Classified Schedule of Authorizations

    Section 102 provides that the details of the amounts 
authorized to be appropriated for intelligence and 
intelligence-related activities for Fiscal Year 2017 are 
contained in the classified Schedule of Authorizations and that 
the classified Schedule of Authorizations shall be made 
available to the Committees on Appropriations of the Senate and 
House of Representatives and to the President.

Section 103. Intelligence Community Management Account

    Section 103 authorizes appropriations in the amount of 
$568,596,000 for the Intelligence Community Management Account 
(ICMA) of the Office of the Director of National Intelligence 
for the elements within the ICMA for Fiscal Year 2017.

 TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM

Section 201. Authorization of appropriations

    Section 201 authorizes appropriations in the amount of 
$514,000,000 for Fiscal Year 2017 for the Central Intelligence 
Agency Retirement and Disability Fund.

           TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS

Section 301. Restriction on conduct of intelligence activities

    Section 301 provides that the authorization of 
appropriations by the Act shall not be deemed to constitute 
authority for the conduct of any intelligence activity that is 
not otherwise authorized by the Constitution or laws of the 
United States.

Section 302. Increase in employee compensation and benefits authorized 
        by law

    Section 302 provides that funds authorized to be 
appropriated by the Act for salary, pay, retirement, and other 
benefits for federal employees may be increased by such 
additional or supplemental amounts as may be necessary for 
increases in compensation or benefits authorized by law.

Section 303. Support to nonprofit organizations assisting intelligence 
        community employees

    Section 303 permits the Director of National Intelligence 
(DNI) to engage in fundraising in an official capacity for the 
benefit of nonprofit organizations that provide support to 
surviving family members of a deceased employee of an element 
of the Intelligence Community or otherwise provide support for 
the welfare, education, or recreation of Intelligence Community 
employees, former employees, or their family members. Section 
303 further requires that the DNI and the Director of the 
Central Intelligence Agency notify the congressional 
intelligence committees at least thirty days before they engage 
in such fundraising (or at the time they decide to participate, 
whichever is earlier).

Section 304. Promotion of science, technology, engineering, and math 
        education in the intelligence community

    Section 304 requires the Director of National Intelligence 
to submit a five-year investment strategy for outreach and 
recruiting efforts in the fields of science, technology, 
engineering, and mathematics (STEM), to include cybersecurity 
and computer literacy. Section 304 further requires elements of 
the Intelligence Community to submit STEM investment plans 
supporting this strategy for each of the fiscal years 2018 
through 2022, along with the materials justifying the budget 
request of each element for these STEM recruiting and outreach 
activities.

Section 305. Retention of employees of the intelligence community who 
        have science, technology, engineering, or math expertise

    Section 305 authorizes a new payscale to permit salary 
increases for employees in the Intelligence Community with STEM 
backgrounds. Section 305 also requires notifications to 
individual employees if a position is removed from this new 
payscale. Section 305 further requires the head of each 
Intelligence Community element to submit to the congressional 
intelligence committees a report on the new rates of pay and 
number of positions authorized under this payscale.

Section 306. Annual review and report on interactions between the 
        intelligence community and entertainment industry

    Section 306 requires the Director of National Intelligence 
to provide an annual report to the congressional intelligence 
committees detailing interactions between the Intelligence 
Community and the entertainment industry. Section 306 also 
requires the report to include a description of the nature, 
duration, costs, and results of each engagement, as well as a 
certification that each engagement did not result in a 
disclosure of classified information and whether any 
information was declassified for the disclosure. Section 306 
further requires that before an Intelligence Community element 
may engage with the entertainment industry, the head of that 
element must approve the proposed engagement and notify the 
congressional intelligence committees at least thirty days in 
advance of why the engagement would further the Intelligence 
Community element's interests.
    These engagements, some of which have been described in 
partially declassified inspector general reports, cost taxpayer 
dollars, raise potential ethics concerns, increase the risk of 
disclosure of classified information, and consume the time and 
attention of Intelligence Community personnel responsible for 
United States national security. Neither the production of 
entertainment nor the self-promotion of Intelligence Community 
entities are legitimate purposes for these engagements.

Section 307. Protections for independent inspectors general of elements 
        of the intelligence community

    Section 307 requires the Inspector General for each 
Intelligence Community element to implement a policy that 
prohibits Office of Inspector General senior employees from 
being involved in matters that affect the interest of an 
organization within an element for which the employee worked 
for at least two years, and that prohibits Office of Inspector 
General non-senior employees from being involved in matters 
that affect the interest of an organization within an agency 
for which the employee worked for at least one year. Section 
307 further prohibits the Director of National Intelligence 
from requiring an employee of an Office of Inspector General to 
rotate to a position in the element for which such office 
conducts oversight.

Section 308. Congressional oversight of policy directives and guidance

    Section 308 requires the Director of National Intelligence 
to submit to the congressional intelligence committees 
notifications and copies of any classified or unclassified 
Presidential Policy Directive, Presidential Policy Guidance, or 
other similar policy document issued by the President which 
involves the Intelligence Community, within the specified 
timeframes. Section 308 further requires the Director to notify 
the congressional intelligence committees of guidance to 
implement such policies.

Section 309. Notification of memorandums of understanding

    Section 309 requires the head of each element of the 
Intelligence Community to submit to the congressional 
intelligence committees copies of each memorandum of 
understanding or other agreement regarding intelligence 
activities entered into with another entity of the federal 
government within specified timeframes.

Section 310. Intelligence community assistance for nationally 
        significant critical infrastructure

    Section 310 requires the Director of National Intelligence 
and the Secretary of Homeland Security to establish a program 
to provide assistance and support to certain critical 
infrastructure entities, on a voluntary basis, for the purpose 
of reducing the likelihood of catastrophic harm resulting from 
a cyber attack.

  TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY

      SUBTITLE A--OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

Section 401. Designation of the Director of the National 
        Counterintelligence and Security Center

    Section 401 renames the National Counterintelligence 
Executive as the ``National Counterintelligence and Security 
Center,'' with conforming amendments.

                       SUBTITLE B--OTHER ELEMENTS

Section 411. Enhanced death benefits for employees of the Central 
        Intelligence Agency

    Section 411 authorizes the Director of the Central 
Intelligence Agency to pay death benefits substantially similar 
to those authorized for members of the Foreign Service, and 
requires the Director to submit implementing regulations to the 
congressional intelligence committees.

Section 412. Pay and retirement authorities of the Inspector General of 
        the Central Intelligence Agency

    Section 412 amends the Central Intelligence Agency Act of 
1949 to authorize the Inspector General (IG) of the Central 
Intelligence Agency (CIA) to consider certain positions as law 
enforcement officers for purposes of calculating retirement 
eligibility and entitlements under chapters 83 and 84 of title 
5, United States Code, if such officer or employee is appointed 
to a position with responsibility for investigating suspected 
offenses against the criminal laws of the United States. 
Section 412 may not be construed to confer on the IG of the 
CIA, or any other officer or employee of the CIA, any police or 
law enforcement or internal security functions or authorities.

Section 413. Prohibition on the Director of the National Security 
        Agency serving contemporaneously as a commander of a combatant 
        command

    Section 413 amends the National Security Act of 1959, 50 
U.S.C. Sec. 3602(a), to prohibit the Director of the National 
Security Agency from concurrently serving as the commander of a 
unified combatant command within the Department of Defense, as 
defined in 10 U.S.C. Sec. 161(c).

Section 414. Enhancing the technical workforce for the Federal Bureau 
        of Investigation

    Section 414 requires the Federal Bureau of Investigation 
(FBI) to produce a comprehensive strategic workforce report to 
demonstrate progress in expanding initiatives to effectively 
integrate information technology expertise in the investigative 
process. Section 414 further requires the report to include: 
(1) progress on training, recruitment, and retention of cyber-
related personnel; (2) an assessment of whether FBI officers 
with these skill sets are fully integrated in the FBI's 
workforce; (3) the FBI's collaboration with the private sector 
on cyber issues; and (4) an assessment of the utility of 
reinstituting and leveraging the FBI Director's Advisory Board.

             TITLE V--MATTERS RELATING TO FOREIGN COUNTRIES

    Section 501. Committee to counter active measures by the 
Russian Federation to exert covert influence over peoples and 
governments.
    Section 501 requires the President to establish an 
interagency committee to counter active measures by the Russian 
Federation that constitute Russian actions to exert covert 
influence over peoples and governments.

Section 502. Limitation on travel of accredited diplomats of the 
        Russian Federation in the United States from their diplomatic 
        post

    Section 502 requires the Director of the Federal Bureau of 
Investigation to certify that Russian diplomats have followed 
proper travel notification procedures before the Secretary of 
State can permit Russian diplomats' travel in excess of 50 
miles outside of their diplomatic posts.

Section 503. Study and report on enhanced intelligence and information 
        sharing with Open Skies Treaty member states

    Section 503 requires the Director of National Intelligence 
to conduct a study to determine the feasibility of creating an 
intelligence sharing arrangement and database among parties to 
the Open Skies Treaty with higher frequency, quality, and 
efficiency. Section 503 also requires the Director to issue a 
report as to how the Russian Federation is using Open Skies 
Treaty collection, a list of the covered parties that have been 
updated with this information, and an analysis of the benefits 
the United States derives by being a party to the treaty as 
well as the potential implications for covered state parties if 
the United States should withdraw from the treaty.

Section 504. Reviews on cooperation between the intelligence community 
        and foreign intelligence entities

    Section 504 requires the Director of National Intelligence 
to review the number, scope, purpose, benefits, and risks of 
the relationships between the Intelligence Community and 
foreign intelligence entities and to report to the 
congressional intelligence committees on specified findings. 
Section 504 further requires the Director of the Central 
Intelligence Agency to review its coordination of the 
relationships between the elements of the Intelligence 
Community and foreign intelligence entities and report to the 
congressional intelligence committees on specified findings.

         TITLE VI--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Section 601. Information on activities of the Privacy and Civil 
        Liberties Oversight Board

    Section 601 requires the Privacy and Civil Liberties 
Oversight Board to keep Congress and relevant Intelligence 
Community elements fully and currently informed of its 
activities.

Section 602. Appointment of staff of the Privacy and Civil Liberties 
        Oversight Board

    Section 602 amends the Intelligence Reform and Terrorism 
Prevention Act of 2004, 42 U.S.C. Sec. 2000ee(j), to require 
that, in the absence of a chairman, the members of the Privacy 
and Civil Liberties Oversight Board (the ``Board'') may, by 
unanimous vote, exercise the chairman's authority to appoint 
and fix the compensation of Board personnel. The Committee 
appreciates the professionalism of the Board's staff. However, 
the Committee is concerned that the staff of the Board may lack 
an appropriate balance in expertise and that this imbalance may 
impede the efforts of the Board to execute its statutory 
mandate to consider the appropriate balance between 
counterterrorism efforts of the United States and the privacy 
and civil liberties as guaranteed by the United States 
Constitution. Therefore, the Committee strongly recommends that 
the Board make every effort to recruit, hire or appoint, and 
retain staff, employees, detailees, experts, and consultants 
who have relevant expertise and experience in both efforts to 
protect the United States from terrorism and with privacy and 
civil liberties as guaranteed by the United States 
Constitution.

Section 603. Protection of the privacy and civil liberties of United 
        States persons

    Section 603 ensures that the Privacy and Civil Liberties 
Oversight Board (the ``Board'') is focused on the privacy and 
civil liberties of United States persons when conducting its 
analysis and review of United States counterterrorism efforts.
    The Committee notes that the August 2004 Executive Order 
13353 provided the foundation for the Board by creating an 
entity within the Department of Justice that would ``protect 
the legal rights of all Americans, including freedoms, civil 
liberties, and information privacy guaranteed by Federal law, 
as the President may direct.''
    Similarly, the Committee recognizes that the Intelligence 
Reform and Terrorism and Prevention Act of 2004 (IRTPA), 42 
U.S.C. Sec. 2000ee(c)(1) and (2) states that the Board ``shall 
(1) analyze and review actions the executive branch takes to 
protect the Nation from terrorism, ensuring that the need for 
such actions is balanced with the need to protect privacy and 
civil liberties; and (2) ensure that liberty concerns are 
appropriately considered in the development and implementation 
of laws, regulations, and policies related to efforts to 
protect the Nation against terrorism.''
    That same language is repeated in the report to accompany 
IRTPA, H. Rept. 108-796, 108th Cong. 2d Sess. (Dec. 7, 2004) 
(the Board ``is charged with ensuring that privacy and civil 
liberties concerns are appropriately considered in the 
implementation of laws, regulations, and policies of the 
government related to efforts to protect the Nation against 
terrorism'').
    Notably, Senator Collins, the original sponsor of IRTPA, 
emphasized this intent on the Senate Floor, stating that the 
transparency resulting from the Board's activities ``helps to 
give confidence to the American people that the protection of 
their civil liberties and privacy is being addressed as we take 
actions to further protect our Nation from terrorism.'' Cong. 
Rec. S11974 (daily ed. Dec. 8, 2004) (statement of Senator 
Collins).
    The Committee believes it is important for the Board to 
consider the privacy and civil liberties of U.S. Persons first 
and foremost when conducting its analysis and review of United 
States counterterrorism efforts.

TITLE VII--MATTERS RELATING TO UNITED STATES NAVAL STATION, GUANTANAMO 
                               BAY, CUBA

Section 701. Declassification review of information on Guantanamo 
        detainees and mitigation measures taken to monitor the 
        individuals and prevent future attacks

    Section 701 requires the Director of National Intelligence 
to complete a declassification review of information on the 
past terrorist activities of detainees transferred or released 
from Guantanamo, make resulting declassified information 
publicly available, and submit to the congressional 
intelligence committees a report setting forth the results of 
the declassification review and, if any information covered by 
the review was not declassified, a justification for the 
determination not to declassify such information. Section 701 
also sets the schedule for such reviews and requires that the 
reviews and reports include mitigation measures being taken by 
the country where the individual has been transferred or 
released to monitor and prevent the individual from carrying 
out future terrorist activities. Section 701 further defines 
past terrorist activities to include terrorist organization 
affiliations, terrorist training, role in terrorist attacks, 
responsibility for the death of United States citizens or 
members of the Armed Forces, any admission thereof, and a 
description of the intelligence supporting the past terrorist 
activities, including corroboration, confidence level, and any 
dissent or reassessment by the Intelligence Community.

Section 702. Limitation on transfer of Guantanamo detainees to foreign 
        countries

    Section 702 prohibits an individual detained at Guantanamo 
from being transferred or released to a foreign country until 
after the date that the Director of National Intelligence 
certifies that an intelligence driven threat monitoring system 
has been established and is sufficient to mitigate the risk of 
such individuals reengaging in terrorism or posing a threat to 
United States persons or national security, and that the 
Intelligence Community has the capability to monitor all such 
individuals by appropriate means to provide assessments on 
their activities as required.

                 TITLE VIII--REPORTS AND OTHER MATTERS

Section 801. Submission of intelligence related information in certain 
        reports by the Secretary of Defense

    Section 801 prohibits the Secretary of Defense from using 
waiver authority under 10 U.S.C. Sec. 119(e)(1) to omit 
reporting intelligence or intelligence-related activities in 
the annual report requirements.

Section 802. Cyber Center for Education and Innovation Home of the 
        National Cryptologic Museum

    Section 802 amends 10 U.S.C. Sec. 449 to enable the 
establishment of a Cyber Center for Education and Innovation 
Home of the National Cryptologic Museum.
    Section 803. Counterintelligence access to telephone toll 
and transactional records.
    Section 803 makes a conforming edit to 18 U.S.C. Sec. 2709, 
to clarify that the government is permitted to obtain non-
content electronic communications transactional records 
(commonly known as ``ECTRs'') from wire or electronic 
communication service providers in national security 
investigations upon proper certification of the Director of the 
Federal Bureau of Investigation (FBI) or the Director's 
designee.
    In 1986, Congress enacted Section 2709 to allow the FBI to 
request telephone subscriber information, toll billing records, 
and electronic communications transactional records in national 
security investigations and imposed a duty on wire and 
electronic communication service providers to comply with such 
requests. This duty has remained unchanged since Section 2709's 
enactment.
    Unfortunately, when Congress amended the required 
certification language in Section 2709(b) in 1993, it 
inadvertently omitted electronic communications transactional 
records among the list of records that required a certification 
from the FBI. Since Section 2709(a) still imposed a duty on 
providers to comply with requests for electronic communications 
transactional records, the FBI continued to issue requests for 
these transactional records and the providers continued to 
comply.
    Beginning in 2009, certain major electronic communications 
service providers began refusing to comply with FBI requests 
for electronic communications transactional records under 
Section 2709. The service providers justified their non-
compliance on the absence of a specific mention of ``electronic 
communications transactional records'' in the required 
certification provision of Section 2709(b). The non-compliance 
of certain companies made it much more difficult for the FBI to 
obtain these electronic communications transactional records. 
Instead of being able to rely upon a properly-certified request 
for electronic communications transactional records under 
Section 2709--which could be issued by the FBI in a matter of 
days--the FBI has been required to seek the very same 
electronic communications transactional records from non-
compliant providers through the use of a business records court 
order under the Foreign Intelligence Surveillance Act, a 
process that often takes over a month. Notably, a 2014 
Department of Justice Inspector General Report states that, 
after certain providers began to refuse to comply with FBI 
requests for electronic communications transactional records, a 
request under Section 2709 that had taken ``a matter of hours 
if necessary, now takes about 30-40 days to accomplish[.]'' 
United States Dep't of Justice, Office of Inspector General, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters: Assessment of Progress in Implementing 
Recommendations and Examination of Use in 2007 through 2009, at 
73 (August 2014).
    In 2010, the Department of Justice began seeking a 
legislative clarification of Section 2709 to address the 
problem caused by the non-compliant providers. Director Comey 
testified at a Senate Judiciary Committee hearing in December 
2015 that a change to the electronic communications 
transactional records provision

        would be enormously helpful. . . . It would save us a 
        tremendous amount of work hours if we could fix that, 
        without any compromise to anyone's civil liberties or 
        civil rights. Everybody who has stared at this has 
        said, ``that's actually a mistake. We should fix 
        that.''

    Additionally, in response to a question posed at this 
Committee's 2016 Worldwide Threats hearing, Director Comey 
stated that the FBI needs

        [a clarification to the electronic communications 
        transactional records provision] very much and it's 
        actually quite an ordinary fix that is necessary 
        because what I believe is a typo in the 1993 statute 
        that has led to some companies interpreting it in a way 
        I don't believe Congress ever intended. And so it is 
        ordinary, but it affects our work in a very, very big 
        and practical way.

    Director Comey also confirmed that it was a ``top 
legislative priority'' for the FBI. Thus, certain providers' 
noncompliance is substantially impairing the FBI's ability to 
conduct national security investigations. Because of this 
resulting operational impairment, the Administration initially 
requested the legislative clarification in 2010 for the Fiscal 
Year 2011 authorization bill. Similarly, on May 24, 2016, the 
Department of Justice reiterated in a formal written proposal 
to the Committee the Administration's request for the 
legislative clarification to Section 2709. The current 
Administration has now twice requested that Congress clarify 
the technical error in Section 2709. Ultimately, the Committee 
approved an amendment to Section 2709(b), which also clarifies 
that ``electronic communications transactional records'' do not 
contain content.

Section 804. Oversight of national security systems

    Section 804 amends 44 U.S.C. Sec. 3557 to codify and 
strengthen existing roles and responsibilities with regard to 
the oversight of national security systems.

Section 805. Joint facilities certification

    Section 805 requires that before an element of the 
Intelligence Community purchases, leases, or constructs a new 
facility that is 20,000 square feet or larger, the head of that 
element must first certify that all prospective joint 
facilities have been considered, that it is unable to identify 
a joint facility that meets its operational requirements, and 
it must list the reasons for not participating in joint 
facilities in that instance.

Section 806. Improvement of leadership and management of space 
        activities

    Section 806 requires the Director of National Intelligence 
(DNI), in collaboration with the Secretary of Defense and the 
Chairman of the Joint Chiefs of Staff, to issue an update to 
the strategy for a comprehensive review of the United States 
national security overhead satellite architecture required in 
the Intelligence Authorization Act for Fiscal Year 2016. 
Section 806 requires the DNI, in coordination with the 
Secretary of Defense, to submit a plan to harmonize the 
Intelligence Community's governance, operations, analysis, and 
collection activities related to space and counterspace under 
the oversight of a single official, to be appointed by the DNI, 
in consultation with the Secretary of Defense. Section 806 also 
requires the DNI to submit a workforce plan for space and 
counterspace operations, policy, acquisition, and analysis. 
Section 806 further requires the Director of the National 
Reconnaissance Office and the Commander of U.S. Strategic 
Command to submit a concept of operations and requirements 
documents for the Joint Interagency Combined Space Operations 
Center.

Section 807. Advances in life sciences and biotechnology

    The Committee recognizes the rapid advancements in the life 
sciences and biotechnology and firmly believes that biology in 
the twenty-first century will transform the world as physics 
did in the twentieth century.
    The potential risks associated with these advancements are 
less clear. The posture of the Intelligence Community to follow 
and predict this rapidly changing landscape is a matter of 
concern recognizing the global diffusion and dual-use nature of 
life sciences and biotechnology along with the dispersed 
responsibility of the life sciences related issues across 
several National Intelligence Officer portfolios.
    Section 807 requires the Director of National Intelligence 
to brief the congressional intelligence committees on a 
proposed plan and actions to monitor advances in life sciences 
and biotechnology to be carried out by the Director. The 
Director's plan should include, first, a description of the 
Intelligence Community's approach to leverage the organic life 
science and biotechnology expertise both within and outside the 
Intelligence Community; second, an assessment of the current 
life sciences and biotechnology portfolio, the risks of genetic 
editing technologies, and the implications of these advances on 
future biodefense requirements; and, third, an analysis of 
organizational requirements and responsibilities to include 
potentially creating new positions. Section 807 further 
requires the Director to submit a written report and provide a 
briefing to the congressional intelligence committees on the 
role of the Intelligence Community in the event of a biological 
attack, including a technical capabilities assessment to 
address potential unknown pathogens.

Section 808. Reports on declassification proposals

    Section 808 requires the Director of National Intelligence 
to provide the congressional intelligence committees with a 
report and briefing on the Intelligence Community's progress in 
producing four feasibility studies undertaken in the course of 
the Intelligence Community's fundamental classification 
guidance review, as required under Executive Order 13526. 
Section 808 further requires the Director to provide the 
congressional intelligence committees with a briefing, interim 
report, and final report on the final feasibility studies 
produced by elements of the Intelligence Community and an 
implementation plan for each initiative.

Section 809. Improvement in government classification and 
        declassification

    Section 809 requires Executive Branch agencies and 
departments to review their classification guidance documents 
every five years. Section 809 further requires the Director of 
National Intelligence to provide an annual written notification 
to the congressional intelligence committees certifying the 
creation, validation, or substantial modification (to include 
termination) of existing and proposed controlled access 
programs, and the compartments and subcompartments within each.

Section 810. Report on implementation of research and development 
        recommendations

    Section 810 requires the Director of National Intelligence 
to conduct and provide to the congressional intelligence 
committees a current assessment of the Intelligence Community's 
implementation of the recommendations issued in 2013 by the 
National Commission for the Review of the Research and 
Development (R&D) Programs of the Intelligence Community.

Section 811. Report on Intelligence Community Research and Development 
        Corps

    Section 811 requires the Director of National Intelligence 
to develop and brief the congressional intelligence committees 
on a plan, with milestones and benchmarks, to implement a R&D 
Reserve Corps, as recommended in 2013 by the bipartisan 
National Commission for the Review of the R&D Programs of the 
Intelligence Community, including any funding and potential 
changes to existing authorities that may be needed to allow for 
the Corps' implementation.

Section 812. Report on information relating to academic programs, 
        scholarships, fellowships, and internships sponsored, 
        administered, or used by the intelligence community

    Section 812 requires the Director of National Intelligence 
to submit to congressional intelligence committees a report on 
information that the Intelligence Community collects on certain 
academic programs, scholarships, and internships sponsored, 
administered, or used by the Intelligence Community.

                           Committee Comments


Commercial Geospatial Intelligence Strategy

    The Committee applauds the National Geospatial-Intelligence 
Agency (NGA) for issuing its October 2015 Commercial Geospatial 
Intelligence (GEOINT) Strategy, which states a goal of 
fostering a ``more diverse, resilient, agile, and responsive 
GEOINT program that provides seamless user access to the best 
mix of commercial GEOINT . . . to fulfill National System for 
Geospatial-Intelligence (NSG) and Allied System for Geospatial-
Intelligence (ASG) mission needs.'' The Committee also finds 
merit in the NGA's ``GEOINT Pathfinder'' project, which seeks 
to maximize the use of unclassified and commercially available 
data sources that can be easily and rapidly shared with a 
variety of military, United States and allied government, and 
non-government customers, and supports the project's 
continuation and expansion.
    The Committee commends the NGA for pursuing new methods of 
intelligence collection and analysis to inform, complement, and 
add to its support of warfighter requirements by looking to 
emerging commercial technology providers, including small 
satellite companies, which hold the promise of rapid 
technological innovation and potentially significant future 
cost savings to the U.S. taxpayer. The Committee further 
encourages the Director of the NGA to ensure sufficient funding 
is available to acquire new, unclassified sources, including 
commercial satellite imagery providing unprecedented global 
persistence, as well as products and services that provide 
information and context about change relevant to geospatial 
intelligence. The Committee also encourages the NGA to pursue 
new business models, including commercial acquisition 
practices, to enable the NGA's access to data, products, and 
services in ways consistent with best commercial practices.
    The Committee fully supports the NGA's course of action in 
partnering with the commercial GEOINT industry to meet future 
warfighter intelligence requirements, while recognizing the 
need to take appropriate steps to protect national security, 
and encourages the Director of the NGA and the Under Secretary 
of Defense for Intelligence to keep the Committee informed of 
their progress in implementing this strategy. In building 
future year budgets, the Committee strongly encourages the 
Department to ensure continued funding is provided for 
implementation through at least Fiscal Year 2021.

Space launch facilities

    The Committee continues to believe it is critical to 
preserve a variety of launch range capabilities to support 
national security space missions. Spaceports or launch and 
range complexes may provide capabilities to reach mid-to-low or 
polar-to-high inclination orbits. The Committee believes an 
important component of this effort may be state-owned and 
operated spaceports that are commercially licensed by the 
Federal Aviation Administration, which leverage non-federal 
public and private investments to bolster U.S. launch 
capabilities. Additionally, the Committee believes that these 
facilities may be able to provide additional flexibility and 
resilience to the Nation's launch infrastructure, especially as 
the nation considers concepts such as the reconstitution of 
satellites to address the growing foreign counterspace threat. 
The Committee notes recent testimony by the Chief of Staff of 
the U.S. Air Force, General Mark Welsh, who stated,

        As we look at this space enterprise and how we do it 
        differently in the future, as we look more at 
        disaggregation, microsats, cube sats, small sats, 
        things that don't have to go from a large launch 
        complex all the time, I think proliferating launch 
        complexes is probably going to be a natural outshoot of 
        this. I think it's commercially viable, it may be a way 
        for companies to get into the launch business who could 
        not afford to get into it or don't see a future in it 
        and for large national security space launches, but I 
        think this has got to be part of the strategy that this 
        whole national team puts together as we look to the 
        future.

    Therefore, the Committee encourages the Intelligence 
Community, in partnership with the U.S. Air Force, to consider 
the role and contribution of spaceports or launch and range 
complexes to our national security space launch capacity, and 
directs the Office of the Director of National Intelligence, in 
consultation with the Department of Defense and the U.S. Air 
Force, to brief the Committee on their plans to utilize such 
facilities.

National reconnaissance office workforce optimization strategy

    The Committee has had longstanding interest in, and support 
for, a permanent government cadre to provide the National 
Reconnaissance Office (NRO) with a stable, expert acquisition 
workforce. The Committee applauds the substantial progress that 
the NRO has made in the past year in this regard. The Committee 
has parallel interests in providing the IC with flexibility to 
manage a multi-sector workforce and in continuing the reduction 
in the reliance on contractors.
    Therefore, the Committee directs the NRO to conduct a 
workforce review to optimize the mix between government 
civilians and contractors and report to the Committee with a 
strategy within 90 days of enactment of this Act.

Office of the Inspector General, Central Intelligence Agency

    The previous Inspector General of the CIA departed from the 
position on January 31, 2015. The President has not yet 
nominated a candidate for the Senate's consideration. The 
Committee believes it is critical that the Office of the 
Inspector General (OIG) be headed by a Senate-confirmed officer 
fully able to exercise the authorities and independence 
provided the position in statute.

                            Committee Action

    On May 24, 2016, a quorum being present, the Committee met 
to consider the bill and amendments. The Committee took the 
following actions:

Votes on amendments to committee bill, this report and the classified 
        annex

    By unanimous consent, the Committee made the Chairman and 
Vice Chairman's bill, together with the classified annex, the 
base text for purposes of amendment.
    By voice vote, the Committee adopted en bloc seven 
amendments to the classified annex sponsored by: (1) Chairman 
Burr and Vice Chairman Feinstein; (2) Senator Rubio; (3) 
Senator Rubio and Senator Lankford; (4) Senator Warner; (5) 
Senator Warner and Senator Blunt; (6) Senator King, Senator 
Lankford, and Senator Rubio; and (7) Senator Cotton and Senator 
Rubio.
    By voice vote, the Committee adopted en bloc the following 
seven amendments to the bill: (1) an amendment by Chairman Burr 
and Vice Chairman Feinstein to enhance the Federal Bureau of 
Investigation's workforce; (2) an amendment by Chairman Burr, 
Vice Chairman Feinstein, Senator Warner, and Senator Cotton 
that permits the Director of National Intelligence to support 
nonprofit organizations assisting Intelligence Community 
employees and their families; (3) an amendment by Vice Chairman 
Feinstein to require notifications of engagements of the 
Intelligence Community with the entertainment industry; (4) an 
amendment by Vice Chairman Feinstein and Senator Hirono to 
improve government classification and declassification; (5) an 
amendment by Senator Rubio to limit the transfers of detainees 
to certain countries; (6) an amendment by Senator Warner, 
Senator Mikulski, and Senator Hirono to require reporting on 
Intelligence Community academic programs; and (7) an amendment 
by Senator Collins, Senator Coats, Senator Mikulski, Senator 
Heinrich, Senator Hirono, Senator Risch, and Senator Warner to 
require Intelligence Community assistance for nationally 
significant critical infrastructure.
    By a vote of 3 ayes to 12 noes, the Committee rejected an 
amendment by Senator Wyden, Senator Heinrich, and Senator 
Hirono to strike Section 603 of the bill. The votes in person 
or by proxy were as follows: Chairman Burr--no; Senator Risch--
no; Senator Coats--no; Senator Rubio--no; Senator Collins--no; 
Senator Blunt--no; Senator Lankford--no; Senator Cotton--no; 
Vice Chairman Feinstein--no; Senator Wyden--aye; Senator 
Mikulski--no; Senator Warner--no; Senator Heinrich--aye; 
Senator King--no; Senator Hirono--aye.
    By voice vote, the Committee adopted an amendment by 
Senator Rubio to the classified annex, as modified by a second 
degree amendment by Vice Chairman Feinstein.
    By a vote of 12 ayes to 3 noes, the Committee adopted an 
amendment by Senator Collins to provide the Inspector General 
of the Central Intelligence Agency with certain pay and 
retirement authorities. The votes in person or by proxy were as 
follows: Chairman Burr--no; Senator Risch--no; Senator Coats--
aye; Senator Rubio--aye; Senator Collins--aye; Senator Blunt--
aye; Senator Lankford--no; Senator Cotton--aye; Vice Chairman 
Feinstein--aye; Senator Wyden--aye; Senator Mikulski--aye; 
Senator Warner--aye; Senator Heinrich--aye; Senator King--aye; 
Senator Hirono--aye.
    By a vote of 12 ayes to 3 noes, the Committee adopted an 
amendment by Senator Cotton, as modified by a second degree 
amendment by Vice Chairman Feinstein, to clarify that the 
Government may obtain electronic communication transactional 
records from information service providers, as well as 
telecommunications providers. The votes in person or by proxy 
were as follows: Chairman Burr--aye; Senator Risch--aye; 
Senator Coats--aye; Senator Rubio--aye; Senator Collins--aye; 
Senator Blunt--aye; Senator Lankford--aye; Senator Cotton--aye; 
Vice Chairman Feinstein--aye; Senator Wyden--no; Senator 
Mikulski--aye; Senator Warner--aye; Senator Heinrich--no; 
Senator King--aye; Senator Hirono--no.
    By voice vote, the Committee adopted an amendment by 
Senator Cotton, as modified by three separate second degree 
amendments by Chairman Burr, Vice Chairman Feinstein, and 
Senator King, to require the Director of National Intelligence 
to lead a process for declassifying and making publicly 
available information on released Guantanamo detainees.

Vote to report the committee bill

    The Committee voted to report the bill, as amended, by a 
vote of 14 ayes and 1 no. The votes in person or by proxy were 
as follows: Chairman Burr--aye; Senator Risch--aye; Senator 
Coats--aye; Senator Rubio--aye; Senator Collins--aye; Senator 
Blunt--aye; Senator Lankford--aye; Senator Cotton--aye; Vice 
Chairman Feinstein--aye; Senator Wyden--no; Senator Mikulski--
aye; Senator Warner--aye; Senator Heinrich--aye; Senator King--
aye; and Senator Hirono--aye.
    By unanimous consent, the Committee authorized the staff to 
make technical and conforming changes in the bill, report, and 
classified annex, following the completion of the mark-up.

                       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, the 
report to accompany it, or the classified schedule of 
authorizations. The bill, report, and classified schedule 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 June 3, 
2016, the Committee transmitted this bill to the Congressional 
Budget Office and requested an estimate of the costs incurred 
in carrying out the 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.

                   ADDITIONAL VIEWS OF SENATOR WARNER

    I am happy that the range of amendments I offered this year 
have all been accepted into the bill, including a number of 
provisions relating to my priorities of modernizing how the 
nation undertakes its planning for, and acquisition of, 
overhead satellite systems, including better coordination and 
collaboration between the Intelligence Community (IC) and the 
Department of Defense.
    I commend the Committee for diligently listening to the 
calls that I and other Committee colleagues, including Senators 
King, Mikulski, Hirono, Rubio and others, have made to closely 
monitor this critical area of our national intelligence 
program.
    The bill directs the Director of National Intelligence, the 
Secretary of Defense and Chairman of the Joint Chiefs to update 
and deliver to the Committee the strategy we called for in last 
year's bill for a comprehensive approach to the overhead 
satellite architecture that supports U.S. intelligence 
programs.
    Such a strategy must ensure that the nation's satellite 
architecture meets the nation's needs in peace- and war-time; 
responsibly stewards the taxpayers' dollars; accurately takes 
into account cost- and performance tradeoffs of the 
architecture; meets realistic requirements; produces and 
fosters excellence, innovation and competition; produces 
innovative satellite systems in under five years that can 
leverage common, standardized design elements and commercially-
available technologies; takes advantage of rapid advances in 
commercial technology, innovation and commercial-like 
acquisition practices; and fosters competition and a robust 
industrial base.
    My focus this year has also been to encourage the IC to 
take advantage of the large number of overhead commercial and 
emerging small satellite technologies that we expect to see 
launched as soon as this year. The Community needs to be 
prepared to take advantage of these resources and not to see 
them as competition. Consistent with the National Space Policy, 
the U.S. government should make maximum use of commercial space 
capabilities and acquisition practices for national security 
systems where the required performance can be met with 
commodity technology to reduce acquisition timelines and costs, 
promote competition, capitalize on the pace of commercial 
technology advances, and avoid unnecessary government-unique 
investments.
    I, along with my Committee colleagues, have commended the 
Community, and especially the National Geospatial-Intelligence 
Agency (NGA) for pursuing new methods of intelligence 
collection and analysis to inform, complement, and add to its 
support of warfighter requirements by looking to emerging 
commercial technology providers, including small satellite 
companies, which hold the promise of rapid technological 
innovation and potentially significant future cost savings to 
the U.S. taxpayer.
    As the Director of NGA, Robert Cardillo, noted last year, 
``we are in the middle of an explosion of innovation across the 
geospatial community. . . . I call this explosion the 
`democratization' of geospatial information. This 
`democratization' makes geospatial intelligence increasingly 
transparent because of the huge number and diversity of 
commercial and open sources of information.'' He went on to 
say, ``the combined possibilities of an emergent commercial 
space market, the small satellite revolution, and a vibrant 
community of companies already mining the possibilities of 
geospatial data has inspired us to seek new opportunities.Let 
me reiterate--NGA wants to be the partner of choice for 
advancing our craft and enabling consequence by cooperating, 
not competing with, industry.''
    At the same time, my intent is not to undercut, or reduce 
current arrangements the Community has for acquiring commercial 
overhead imagery, which have worked exceptionally well--
including through the ``Enhanced View'' arrangement. I would 
like to see the Community ``expand the pie'' of available 
commercial data, not to shrink what has been working well, as 
we prepare for new technologies to come on line.
    Elsewhere in the bill, I was happy to see the emphasis on 
the need to enhance the way the Community undertakes research 
and development (R&D). Building upon the work of the 2013 
National Commission for the Review of the R&D Programs of the 
IC, provisions I offered require the DNI to develop a plan to 
implement an ``R&D Reserve Corps,'' as recommended by the 
Commission, and to provide an updated assessment of the 
Community's implementation of Commission's recommendations.
    A provision I offered with Senator Mikulski calls on the IC 
to provide metrics of how well they are doing at hiring 
talented individuals who have gone through IC-supported 
academic programs such as the NSA and DHS National Centers of 
Academic Excellence in Information Assurance and Cyber Defense 
Education (such as those at Virginia academic institutions 
including at George Mason University, Hampton University, James 
Madison University, Lord Fairfax Community College, Marymount 
University, Norfolk State University, Northern Virginia 
Community College, Radford University, Tidewater Community 
College, and Virginia Tech).
    Another provision I offered with Senator Blunt authorizes 
funds to operate a Childcare Center at the National Geospatial-
Intelligence Agency's headquarters at Fort Belvoir, which is 
much needed by the intelligence professionals who work there to 
keep the nation safe, and where the childcare center building 
has not been operational since it was built two years ago.
    A provision I offered calls upon the IC, in partnership 
with the U.S. Air Force, to consider the role and contribution 
to our national security space launch capacity of spaceports or 
launch and range complexes that are state-owned and operated, 
and commercially licensed by the Federal Aviation 
Administration--such as Virginia's Wallops Island. In 
supporting this provision the Committee cites the Chief of 
Staff of the U.S. Air Force, General Mark Welsh, who recently 
stated, ``As we look at this space enterprise and how we do it 
differently in the future, as we look more at disaggregation, 
microsats, cube sats, small sats, things that don't have to go 
from a large launch complex all the time, I think proliferating 
launch complexes is probably going to be a natural outshoot of 
this. I think it's commercially viable, it may be a way for 
companies to get into the launch business who could not afford 
to get into it or don't see a future in it and for large 
national security space launches, but I think this has got to 
be part of the strategy that this whole national team puts 
together as we look to the future.''
    In closing, I wish to reiterate how proud I am to represent 
the thousands of current and former members of the intelligence 
agencies who live, work, or retire in Virginia. Because they 
are not able to discuss their very important work with friends 
and even family members, I will continue to be a strong 
advocate for them in Congress, and will continue to pursue 
efforts to recognize and honor their contributions to the 
nation.
                                                     Mark R. Warner

                   ADDITIONAL VIEWS OF SENATOR COATS

    The Defense Intelligence Agency (DIA) is unique among its 
peer agencies in the Intelligence Community, as it's charged 
with twin obligations that complement and at times conflict 
with one another. The DIA's role as the premier combat support 
agency and a national intelligence organization demand steady 
leadership and an unshakable commitment to analytic objectivity 
in the face of departmental allegiance or a sense of owed 
deference to the military rank structure. In my view, the DIA's 
continued stewardship by a uniformed military officer is 
irreconcilable with this aspiration.
    As overseer for the entirety of the Defense Intelligence 
Enterprise (DIE), the Director of the DIA is charged with 
responsibilities that extend far beyond the agency itself. The 
DIE is a community within a community, comprising the DIA, 
Service Intelligence Centers, and the respective intelligence 
centers of the various Combatant Commands. The tension 
underlying this arrangement is a function of protocol and 
military deference. While the DIA is a three-star command 
within the Department of Defense (DOD) construct, the 
intelligence operations in many of the DIE's constituent 
entities function under the aegis of four-star commands--and 
specifically, the four-star general leading those commands.
    The sum of these underlying structural realities is that a 
three-star general is ostensibly responsible for the analytic 
quality and objectivity of DIA analysts who--as a function of 
proximity and organizational architecture--work under four-star 
generals. The problem with this construct should be self-
evident. If not, a demonstrative example can be found in 
allegations that intelligence analysis was deliberately 
manipulated at U.S. Central Command's Joint Intelligence Center 
(JICCENT) to favor desired policy outcomes. Notably absent from 
this episode is the DIA Director's exercise of evocative 
supervisory responsibility over the JICCENT work product, which 
would be in fact anathema to the command and rank structure 
within which the DIA and U.S. Central Command exist in relation 
to one another.
    While my concerns are most acutely agitated by the 
referenced allegations, they do not end there. The DIA faces 
systemic issues, including incoherence of mission, resistance 
to change, and unwillingness to meaningfully define its 
customer base. The agency faces seemingly limitless 
intelligence requirements and unique structural challenges that 
hinder its ability to satisfy customers in the DOD, Military 
Departments, Unified Combatant Commands, and the broader 
Intelligence Community (IC). The present approach appears 
instead to be a mechanical assumption of responsibility for any 
conceivable intelligence requirement that a boundless 
population of customers might level on the DIA. Surely, this is 
inconsistent with the cultivation of deep-seated professional 
expertise, proficiency, and organizational identity. At a 
minimum, it is inefficient and unsustainable.
    In the course of our Committee debate on the Intelligence 
Authorization Act for Fiscal Year 2017, I introduced an 
amendment that would mandate a transition to civilian 
leadership at the DIA. I do not take lightly the intent, and I 
am sensitive to the deviation from historical precedent. I am 
nonetheless compelled to advocate for this change in the DIA's 
leadership construct. It is a necessary step toward addressing 
an agency beset by the challenges I have outlined, although I 
recognize it will not on its own resolve all of them. Civilian 
leadership of the DIA would in my view change the obstructive 
dynamic that presently defines the agency's relationship with 
important DIE constituents, not the least of which are the 
Combatant Commands--and especially U.S. Central Command. With 
operational responsibility for wars in Syria, Iraq, and 
Afghanistan, the intelligence produced under U.S. Central 
Command auspices must be incorruptible in practice and 
perception. Present circumstances, however, invite the opposite 
judgment.
    While the ultimate version of the bill that was reported to 
the full Senate did not include my proposed amendment, I am 
hopeful this discussion will continue within the Committee, 
between the Armed Services and Intelligence Committees, and 
with the IC and DOD. The intelligence needs of the U.S. 
warfighter, and the broader national security ecosystem, demand 
that we cooperatively address this issue.
                                                         Dan Coats.

            ADDITIONAL VIEWS OF SENATORS HEINRICH AND HIRONO

    This important bill authorizes funding for key intelligence 
priorities, including programs to address the threat of 
terrorism. We supported the bill during Committee 
consideration, and look forward to further discussion as the 
bill moves forward, especially on those provisions that have 
not yet been subject to public debate.
    We are particularly concerned about two provisions in the 
bill.
    The first is a provision added to the bill by amendment. 
This amendment would grant new authority to the FBI to obtain 
electronic communication transactional records (ECTRs) using 
National Security Letters (NSLs), which compel recipients to 
allow government access to records without a court order.
    The FBI has compared expanding these authorities to fixing 
a ``typo'' in the Electronic Communications Privacy Act (ECPA). 
However, during consideration of ECPA reform legislation in 
1993, the House Judiciary Committee said in its committee 
report that ``Exempt from the judicial scrutiny normally 
required for compulsory process, the national security letter 
is an extraordinary device. New applications are disfavored.''
    The House Judiciary Committee report also makes clear that 
the bill's changes to Section 2709(b) of ECPA were a 
``modification of the language originally proposed by the 
FBI.''
    This does not support claims that the removal of the ECTR 
language was a ``typo.''
    Instead, the ECTR amendment to this bill represents a vast 
expansion of FBI authorities. Currently, the FBI is permitted 
to use NSLs only to obtain basic subscriber information about 
telecommunications--name, address, length of service, and local 
and long distance toll billing records. However, this amendment 
would broaden that list to include electronic communication 
transactional records, which the FBI could then obtain from 
service providers by merely certifying relevance to an 
investigation with no court order required.
    The FBI can already obtain ECTRs with a court order using 
other authorities, but this broad new authority would allow the 
FBI to obtain internet transactional information that is far 
more revealing than phone records, to include records of emails 
sent and received, cell site location data, and a person's 
website browsing history--all without any court approval or 
independent oversight.
    In addition, this bill report asserts that ``certain 
providers'' noncompliance is substantially impairing the FBI's 
ability to conduct national security investigations.'' Leaving 
aside the question of whether adherence to the law equates to 
`noncompliance,' the FBI has merely stated, but not yet made a 
convincing case, that its conduct of national security 
investigations has been harmed by its inability to access ECTRs 
via National Security Letters.
    Even as other committees in the Senate are working on ECPA 
reform legislation in open hearings, we should not be marking 
up a bill behind closed doors that makes a major change to 
existing statute without public discussion and debate.
    We are also concerned about Section 603, which would narrow 
the oversight responsibilities of the Privacy and Civil 
Liberties Oversight Board (PCLOB). In additional views we 
submitted to the FY 2016 Intelligence Authorization Act report, 
we noted that we did not look favorably on a provision in the 
House-passed FY 2016 bill that would restrict PCLOB's mandate. 
Unfortunately, that provision became law. This year, it is the 
Senate bill that seeks to further constrain this small but 
important organization.
    The PCLOB is the only independent, cross-government agency 
charged specifically with ensuring that the government's 
efforts to prevent terrorism are balanced with the need to 
protect privacy and civil liberties. Section 603 of the 
Intelligence Authorization Act would limit the authority of the 
PCLOB by narrowing its authority to review government programs 
to only those that impact the privacy and civil liberties of 
U.S. persons.
    While the PCLOB already focuses primarily on U.S. persons, 
it is not mandated to do so exclusively. Limiting the PCLOB's 
mandate to only U.S. persons could create ambiguity about the 
scope of the PCLOB's mandate, raising questions in particular 
about how the PCLOB should proceed in the digital domain, where 
individuals' U.S. or non-U.S. status is not always apparent. It 
is conceivable, for example, that under this restriction, the 
PCLOB could not have reviewed the NSA's Section 702 
surveillance program, which focuses on the communications of 
foreigners located outside of the United States, but which is 
also acknowledged to be incidentally collecting Americans' 
communications in the process.
    The PCLOB is a small body, created as part of the 
Implementing Regulations of the 9/11 Commission Act of 2007 
without any authority to implement its recommendations. However 
small, the PCLOB's creation recognized that the challenges of 
balancing privacy and civil liberties with our national 
security would only increase as our world becomes smaller due 
to the proliferation of new types of communication and other 
global interconnections.
    The PCLOB has two fundamental responsibilities. First, it 
is charged with reviewing and analyzing executive branch 
counter-terrorism actions to ensure that the actions our 
government take appropriately protect privacy and civil 
liberties. Second, it is charged with making sure that privacy 
and civil liberty protections are considered in the development 
of our counter-terrorism policies. In the post-9/11 world we 
live in, the PCLOB provides a critical voice within the 
executive branch that helps shape how our nation conducts 
itself as we contend with global terrorism and other 
challenges. Yet for the second year in a row, Congress would be 
narrowing PCLOB's jurisdiction. We believe this is not the 
right message to send.
                                   Martin Heinrich.
                                   Mazie K. Hirono.

                    MINORITY VIEWS OF SENATOR WYDEN

    While I respect the effort that my colleagues have put into 
drafting this year's Intelligence Authorization Act, I opposed 
this bill because it would dramatically and unnecessarily 
expand government surveillance authorities, and would undermine 
independent oversight of America's intelligence agencies.
National Security Letters
    Specifically, this bill contains language--section 803--
that would authorize individual Federal Bureau of Investigation 
(FBI) field offices to demand Americans' email and Internet 
records simply by issuing a National Security Letter, with no 
court oversight whatsoever.
    This authority currently exists for phone records, and FBI 
officials have repeatedly suggested that it would be convenient 
if `electronic communication transaction records,' such as 
email and Internet records, could be collected in the same way. 
But convenience alone does not justify such a dramatic erosion 
of Americans' constitutional rights.
    If FBI officials have reason to suspect that an individual 
is connected to terrorism or espionage, they can already access 
that person's email and Internet records by simply obtaining an 
order from the Foreign Intelligence Surveillance Court. These 
orders can be issued in secret, and require relatively little 
evidence--the FBI simply needs to assert that the records are 
``relevant to an investigation.'' But requiring the approval of 
an independent judge provides an important check against the 
abuse or misuse of this authority by the FBI. By contrast, 
National Security Letters are not reviewed by a judge unless a 
company that receives one attempts to challenge it.
    I certainly appreciate the FBI's interest in obtaining 
records about potential suspects quickly. But Foreign 
Intelligence Surveillance Court judges are very capable of 
reviewing and approving requests for court orders in a timely 
fashion. And section 102 of the recently-passed USA FREEDOM Act 
gives the FBI new authority to obtain records immediately in 
emergency situations, and then seek court review after the 
fact. I strongly supported the passage of that provision, which 
I first proposed in 2013. By contrast, I do not believe it is 
appropriate to give the government broad new surveillance 
authorities just because FBI officials do not like doing 
paperwork. If the FBI's own process for requesting court orders 
is too slow, then the appropriate solution is bureaucratic 
reforms, not a major expansion of government surveillance 
authorities.
    While this bill does not clearly define `electronic 
communication transaction records,' this term could easily be 
read to encompass records of whom individuals exchange emails 
with and when, as well as well as individuals' login history, 
IP addresses, and Internet browsing history. This sort of 
surveillance can clearly reveal a great deal of personal 
information about individual Americans. Our Founding Fathers 
rightly argued that such intrusive searches should be approved 
by independent judges.
    It is worth noting that President George W. Bush's 
administration reached the same conclusion. In November 2008, 
the Justice Department's Office of Legal Counsel advised the 
FBI that National Security Letters could only be used to obtain 
certain types of records, and this list did not include 
electronic communication transaction records. The FBI has 
unfortunately not adhered to this guidance, and has at times 
continued to issue National Security Letters for electronic 
communications records. A number of companies that have 
received these overly broad National Security Letters have 
rightly challenged them as improper. Broadening the National 
Security Letter law to include electronic communication 
transaction records would be a significant expansion of the 
FBI's statutory authority.
    And unfortunately, the FBI's track record with its existing 
National Security Letter authorities includes a substantial 
amount of abuse and misuse. These problems have been 
extensively documented in reports by the Justice Department 
Inspector General from 2007, 2008, 2010 and 2014, so I will not 
repeat the details of these reports here. In my judgment, it 
would be reckless to expand this particular surveillance 
authority when the FBI has so frequently failed to use its 
existing authorities responsibly.
Privacy and Civil Liberties Oversight Board
    Separately, I am troubled that this bill would erode the 
jurisdiction of the independent Privacy and Civil Liberties 
Oversight Board, for the second year in a row.
    Specifically, the bill would narrow the Board's statutory 
jurisdiction to cover only programs that impact the privacy and 
civil liberties of U.S. persons. To date, the Board's oversight 
has focused very much on U.S. persons, and in my judgment this 
is entirely appropriate. But if the Intelligence Committee 
simply wanted to encourage the Board to maintain this focus, 
that could be accomplished with non-binding report language. 
Instead, this provision amends the law to limit the Board's 
official purview.
    This is concerning because in the digital domain, 
individuals' U.S. or non-U.S. status is not always readily 
apparent, and restricting the Board in this way could 
discourage or even prevent the Board from examining programs 
whose impact on U.S. persons is not clear at first glance.
    Additionally, while I support the Board's current focus on 
U.S. persons, it is easy to envision situations in which 
tasking the Board to produce a one-time report that also looked 
at non-U.S. persons might be appropriate. This provision would 
arguably prohibit the Board from taking on such projects.
    Furthermore, I would note that over the past few years the 
Executive Branch has made real efforts to mitigate the 
diplomatic and economic damage that overly broad surveillance 
activities have caused. These efforts continue to be a work in 
progress, and foreign regulators continue to raise concerns 
about U.S. surveillance as justification for opposing 
agreements that would benefit American consumers and the U.S. 
tech industry. I am therefore concerned that narrowing the 
Board's jurisdiction and signaling that the U.S. has no regard 
for the privacy of other countries' citizens would play into 
the hands of foreign protectionists.
    Finally, I am troubled by the message that the Intelligence 
Committee is sending by supporting this provision. Over the 
past three years, the Privacy and Civil Liberties Oversight 
Board has done outstanding and highly professional work. It has 
examined large, complex surveillance programs and evaluated 
them in detail, and it has produced public reports and 
recommendations that are quite comprehensive and useful. 
Indeed, the Board's reports on major surveillance programs are 
the most thorough publicly available documents on this topic. 
My concern is that by acting to restrict the Board's purview 
for the second year in a row, and by making unwarranted 
criticisms of the Board's staff in this report, the 
Intelligence Committee is sending the message that the Board 
should not do its job too well.
    Unfortunately, while I appreciate that this bill includes a 
proposal that I and a bipartisan, bicameral group of colleagues 
have put forward to allow the Board to hire staff even when the 
Board's chair position is vacant, the inclusion of this 
provision does not outweigh my substantial concerns with this 
bill.
    I will continue to oppose this bill as long as the 
objectionable provisions noted above are included. I hope to be 
able to work with colleagues to remove these provisions prior 
to consideration of the bill by the full Senate. My further 
additional views on provisions contained in the classified 
annex to this bill can be found in the annex itself.

                                                         Ron Wyden.

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