LEGISLATIVE BULLETIN | December 17, 2007

S. 2248, the FISA Amendments Act of 2007

Summary

 S. 2248, the FISA Amendments Act of 2007, would amend the Foreign Intelligence Surveillance Act of 1978 and revise the ProtectAmericaAct of 2007 (P.L. 110-55, signed into law on August 5, 2007). The bill would ensure effective targeting of foreign terrorists and other threats to American security while also providing increased protection of civil liberties and privacy rights of people in the United States. 

On October 18, the Senate Select Committee on Intelligence voted to favorably report S. 2248, with a written report. The bill was then introduced on October 26 by Senator Rockefeller. The Intelligence Committee report on the bill, S. Rep. No. 110-209, contains an extensive description of the matters addressed in the bill, including a lengthy section-by-section analysis and additional and minority views. 

On November 1, the bill was then referred to the Senate Judiciary Committee where a hearing entitled, “FISA Amendments: How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability” was held on October 31. On November 15, the committee voted favorably to report the bill with a substitute amendment, without written report. This legislative bulletin, in the expected amendments section, will include a more detailed section-by-section of the Judiciary Committee substitute. 

Under regular order, on December 17, the Senate is expected to consider S. 2248, as reported by the Intelligence Committee, with a pending substitute amendment, as reported by the Judiciary Committee. 

Major Provisions

Senate Intelligence Committee Bill

Title I – Foreign Intelligence Surveillance

Targeting the communications of foreign terrorists and intelligence targets outside the United States.As in the Protect America Act, the bill would grant the Attorney General and the Director of National Intelligence the authority to target persons reasonably believed to be outside of the United Statesfor the purpose of collecting intelligence for up to one year. 

Protecting civil liberties of American citizens, both inside and outside the United States.

• Limitations and prohibitions on the collection of information.The legislation includes specific limitations and prohibitions regarding the collection of information on American citizens, which would significantly enhance civil liberties protections and privacy rights guarantees. The bill would authorize the acquisition of foreign intelligence information only if it “targets” persons who are reasonably believed to be located outside of the United States. Additionally, the legislation would prohibit the use of reverse targeting – conducting surveillance on someone outside the United States for the purpose of targeting a particular known person in the United States.
   
• Strengthened role of the FISA Court.The bill would increase the role of the FISA Court by requiring judicial review and approval in four ways. It would require that the court: 1) review the certification submitted by the Attorney General authorizing the foreign intelligence surveillance; 2) approve the foreign targeting procedures for determining that the target of the surveillance is reasonably believed to be outside of the United States; 3) approve the procedures for minimizing the identities of and information about Americans incidentally collected during the surveillance of foreign targets; and 4) approve or disapprove the targeting of Americans overseas under this new authority on an individual basis, based on its determination as to whether there is probable cause to believe that the person is an agent of a foreign power. 

Improving oversight and accountability.The bill includes several measures that would help to ensure effective oversight of the FISA program. 

• Sunset provision.The bill includes a six-year sunset to allow Congress to evaluate how the new authorities are carried out and to ensure that abuses do not occur before authorities are further extended.
   
• Intelligence Community reviews and reports.The legislation would require the Intelligence Community to conduct an annual review and would require that detailed semi-annual reports be submitted to the Senate and House Intelligence and Judiciary Committees concerning collections authorized in the bill, including instances of non-compliance.
   
• Independent reviews.The bill would authorize the Inspectors General of the Department of Justice and elements of the Intelligence Community to conduct independent reviews of agency compliance with the court-approved acquisition and minimization procedures. 

Exclusivity provision.The bill would reaffirm the 1978 statement included in the FISA bill that the Act and the provisions of Title 18 are the exclusive means by which electronic surveillance and the interception of domestic communications may be conducted. 

Title II – Protections for Electronic Communication Service Providers

Retroactive immunity for communications companies.The bill would provide focused retroactive immunity to communications service providers that were alleged to have cooperated with the intelligence community in implementing the President’s surveillance program. 

• The bill would provide immunity for companies that may have participated in the President’s surveillance program that was authorized from September 11, 2001 to January 17, 2007, when the program was placed under FISA Court authorization.
   
• The bill would require a certification to the FISA Court by the Attorney General that the company’s participation was pursuant to a written request or directive of the Attorney General or intelligence agency head or deputy head and was part of the program authorized by the President and determined to be lawful. 

New Title VIII of FISA.The bill includes a new Title VIII of FISA: “Protection of Persons Assisting the Government.” This title would establish long-term procedures for two situations:

• Procedures for implementing statutory defenses. The bill would provide procedures that can be used in the future by the government to implement statutory defenses and to seek dismissal of civil cases against persons, primarily electronic communications service providers, who assist the Intelligence Community in accordance with orders of the FISA Court or certifications or directives provided for and defined by statue.
   
• Preemption of state investigations. The bill would provide for the protection (through preemption) of the federal government’s ability to conduct intelligence activities without interference by state investigations. 

Title III – Other provisions

The legislation includes procedures for transition from the Protect America Act to the new Title VII of FISA and would provide authority for the government to continue to apply to the FISA Courtfor orders under Title I of FISA in accordance with the law as it stood before the enactment of the Protect America Act. It also includes provisions for the continuation of any authorizations or directives under the bill that are in effect at the time of the December 12, 2013 sunset, until their expiration within the year following the sunset. 

Expected Amendments

Several amendments are expected to S. 2248. As discussed above, the first amendment is expected to be an amendment in the nature of a complete substitute as reported by the Judiciary Committee. The amendment does not include retroactive immunity for communications companies (as is provided in Title II of the Intelligence Committee bill). 

Major Provisions

Senate Judiciary Committee Substitute Amendment 

Title I -- Foreign Intelligence Surveillance 

Section 101.Targeting the Communications of Certain Persons Outside the United States. The substitute amendment as reported out by the Senate Judiciary Committee would amend theForeign Intelligence Surveillance Act (FISA) by striking and replacing the language of Title VII.

Title VII --Additional Procedures for Targeting Communications of Certain Persons Outside the United States States

Definitions.The amendment would explicitly preserve the current definitions in Section 101 of FISA for “electronic surveillance.” 

Procedures for Acquiring the Communications of Certain Persons Outside the United States

Targeting Persons Outside the United States

The amendment would permit the Attorney General (AG) and Director of National Intelligence (DNI) to jointly authorize, for no more than one year, the targeting of persons reasonably believed to be located outside the United States for the purposes of foreign intelligence information provided that the authorization: 

·does not intentionally target a person reasonably believed to be located inside the United States at the time acquisition; and

·does not intentionally target a person reasonably believed to be outside the United States if the purpose is to acquire the communications of a person reasonably believed to be inside in the United States, unless the manner of acquisition satisfies the Fourth Amendment. 

The amendment would prohibit the use of electronic surveillance conducted inside the United States to intentionally target a United States person reasonably believed to be outside the United States, except in accordance with Title I of FISA. 

The amendment would prohibit the use of an electronic, mechanical, other surveillance device used outside the United States to intentionally target a United States person reasonably believed to be outside the United States where that person has a reasonable expectation of privacy and a warrant would be required if the technique was being used inside the United States, unless:

·theFISA Court has approved the surveillance of the United Statesperson under section 105 of the FISA or, if an emergency, surveillance is being conducted consistent with Title I of the FISA; or

·the FISA Court has determined that there is probable cause to believe that the United States person is, or is an agent of, a foreign power; the AG has established adequate minimization procedures under section 101(h); and the dissemination provisions of these minimization procedures have been approved. 

Probable Cause Determination.The amendment would limit the FISA Court’s review of the AG’s probable cause determination to a determination of whether, based on the facts submitted by the AG, there is probable cause to believe that the United States person living outside the United Statesis a foreign power or an agent of a foreign power. If the court finds probable cause, the court would issue an order approving the acquisition for 90 days, which could be renewed for additional 90-day periods. If the court does not find probable cause, the court would issue an order with its reasoning, which the government could appeal to the FISA Court of Review. 

Review of Minimization Procedures.The amendment would require the FISA Court to determine whether the procedures used to minimize the dissemination of information acquired about United States persons believed to be located outside the United Statesmeet the requirements of section 101(h) of the FISA. If the court finds that the procedures are inadequate, the court would issue an order with its reasoning, which the Government could appeal to the FISA Court of Review. 

Emergency Procedures.The amendment would permit the AG to authorize the emergency acquisition of communications of a United States person believed to be located outside the United States without first obtaining a probable cause determination by the FISA Court if the AG: 

·reasonably believes that there is not sufficient time to obtain the determination firstand the facts are sufficient to support a probable cause determination by the court;

·concurrently informs a FISA judge of the decision to authorize an emergency acquisition;

·seeks a probable cause determination by the same FISA judge within 72 hours (3 days) of the emergency authorization; and

·requires the minimization procedures set forth in section 101(h). 

In the absence of a probable cause determination by the FISA Court that United States person targeted by the emergency acquisition is, or is an agent of, a foreign power, the emergency acquisition would be required to terminate as soon as the information sought is obtained, the probable cause determination is denied, or at the end of the 72 hour period, whichever is earliest. 

If the court determines that there is no probable cause, or if the emergency acquisition is terminated without a finding of probable cause by the court, no information obtained or evidence derived from the emergency acquisition could be used as evidence, or otherwise disclosed, in any proceeding in or before an authority of the United States, e.g. court, grand jury, department, office, agency, regulatory body, or legislative committee. Further, unless the AG determines that there is a threat of death or serious bodily harm to any person, no information concerning any United States person obtained in the acquisition could be used or disclosed by federal officers or employees without the person’s consent. 

Procedures.The amendment would require the AG to submit to the FISA Courtthe procedures used to determine whether a target reasonably believed to outside the United States is a United Statesperson no later than 30 days after the enactment of this Act. The amendment would provide that the FISA Court review these procedures and approve them if they are reasonable designed to determine whether the target located outside the United States is a United States person. If the court finds that the procedures are inadequate, the court would issue an order with its reasoning, which the Government could appeal to the FISA Court of Review. The amendment would require that, henceforth, any targeting of persons located outside the United States would use the procedures approved by FISA Court along with any new/amended procedures that are later approved.

Conduct of Acquisition.The amendment would provide that acquisition of communications of persons located outside theUnited Statesmay only be conducted in accordance with a certification by the AG and DNI and the required targeting and minimization procedures. 

Targeting Procedures.The amendment would require the AG, in consultation with the DNI, to adopt procedures that are designed to limit targeting to persons reasonably believed to be outside the United States and, if so required, submit an application under Title I when the significant purpose of an acquisition is to acquire the communications of a person reasonably believed to be inside the United StatesThese procedures would be subject to judicial review. 

Minimization Procedures.The amendment would require the AG, in consultation with the DNI, to adopt minimization procedures for authorized acquisitions of the communications of persons located outside the United States, consistent with section 101(h). These procedures would be subject to judicial review. 

Certification.The amendment would require the AG and DNI to provide a written certification prior to an authorized acquisition of communications of a United States person located outside the United States An exception would be for acquisitions deemed an emergency, but the certification must be submitted as soon as possible and no later than 168 hours after the determination. 

A certification would consist of an attesting that: 

·thereare reasonable procedures in place to ensure the acquisition is targeted at persons reasonably believed to be outside the United Statesand that these procedures have, or will be, reviewed by the FISA Court;

·thesaid procedures satisfy the Fourth Amendment and do not permit the intentional targeting of persons known at the time of the acquisition to be inside the United States;

·anapplication will be filed under Title I, if otherwise required, when the significant purpose of an authorized acquisition is to acquire the communications of a person reasonably believed to be inside the United States;

·asignificant purpose the acquisition is to obtain foreign intelligence;

·theacquisition involves obtaining foreign intelligence via an electronic communication service provider;

·theminimization procedures are adequate and have, or will be, reviewed by the FISA Court; and

·theacquisition is limited to communications in which at least one party is a specific individual target reasonably believed to be outside the United States 

The amendment would also require that, if appropriate, the certification be supported by the affidavit of a national security official appointed by President, by and with Senate’s consent, or the head of any intelligence community entity. The amendment would not, however, require the certification to identify the specific facilities, place, premises, or property targeted. 

The amendment would require that the AG submit a copy of the certification, and any supporting affidavits, to the FISA Courtas soon as possible but within five days of the certification. The certification would be subject to judicial review. 

Directives.The amendment would authorize the AG and DNI to direct an electronic communication service provider, in writing, to: secretly assist the Government in an acquisition and keep secure any records related to the acquisition and/or the provider’s assistance. The government would be required to compensate, at the prevailing rate, a provider for its assistance. Providers would also be given legal immunity for their assistance with an acquisition. 

A provider could challenge a directive by filing a petition with the FISA Court, which would be required to assign a judge within 24 hours. The judge could grant the petition to modify or set-aside the directive only if the directive does not meet the requirements of this section or is otherwise unlawful. Any directive not explicitly modified or set aside will remain in effect. 

The AG could, similarly, compel compliance with a directive by filing a petition with the FISA Court, which would be required to assign a judge within 24 hours. The judge would be required to grant the petition to compel if the directive meets the requirements of this section and is otherwise lawful. Failure to obey an order of the court could be punished as contempt of court. Any process under this paragraph could be served in any judicial district where the provider is found. 

Both the Government and providers could appeal a decision of the FISA Court to the FISA Court of Review within seven days of the lower court’s decision. Decisions of the FISA Court of Review could be appealed under seal to the Supreme Court of the United States. 

Judicial Review.As discussed above, the FISA Courtwould be granted jurisdiction to review any certification or targeting or minimization procedures, which must be submitted to the court within five days of creation or amendment. With respect to certifications, the court would have the authority to determine whether the certification contains all required elements. 

With respect to targeting procedures, the court would have the authority to assess whether the procedures are effective and in-compliance with requirements. With respect to minimization procedures, the court would have the authority to assess whether the procedures meet the requirement under section 101(h) of FISA. 

If the court is satisfied that all requirements have been met and the Fourth Amendment has been adhered to, the court would enter an order approving the continued use of the procedures for the acquisition of communications of persons reasonably believed to be located outside the United States 

If the court finds the opposite, the court would give the Government an opportunity to correct any deficiency within 30 days or cease the acquisition. The amendment would prohibit the use or disclosure of information obtained or evidence derived from an insufficient acquisition in any proceeding in or before an authority of the United States. Further, unless the AG determines that there is a threat of death or serious bodily harm to any person, no information concerning any United Statesperson obtained in the acquisition could be used or disclosed by federal officers or employees without the person’s consent. If, however, the government corrects an identified deficiency, the court could grant an exception and permit the use or disclosure of information acquired before the date of the correction, pursuant to such minimization procedures as the court deems necessary.

The Government could appeal the FISA Court’s decision to the FISA Court of Review and move for a stay of the lower court’s order pending the appeal. Decisions of the FISA Court of Review could be appealed under seal to the Supreme Court.

The amendment would authorize the FISA Courtto review and assess compliance with minimizations procedures previously approved by reviewing the semiannual assessments submitted by the AG and DNI. In the process of this review, the court may require the government to provide additional information regarding the acquisition, retention, or dissemination of information concerning United States persons. 

The FISA Court would also be authorized to fashion remedies as necessary to enforce a court order. 

Maintenance of Records.The amendment would require that all court records related to the acquisition of communications be maintained under the security measures adopted by the Chief Justice of the United States, in consultation with the AG and DNI. All petitions would be required to be filed under seal. At the request of the Government, a court could review ex parte and in camera any Government submission that contains classified information. The amendment would also require that records of a directive made or an order granted by retained for at least ten years. 

Oversight.The amendment would require the AG and DNI to assess compliance with the required targeting and minimization procedures every six months. Each assessment would then be submitted to the FISA Court and the House and Senate intelligence committees. 

The Inspectors Generals (IG) of the Department of Justice and any element of the intelligence community authorized to acquire foreign intelligence would be authorized to review their organization’s compliance with the required targeting and minimization procedures. The IG would look at the number of disseminated intelligence reports containing reference to a United Statesperson identity, and the number of United States person identities subsequently disseminated by the relevant agency in response to requests for identities that were not originally referred to by name or title. The IG would also evaluate the number of targets that were later determined to be located inside the United States and the number of persons located inside the United States whose communications were reviewed. Once completed, the IG’s review would be submitted to the AG, DNI, and the House and Senate intelligence committees.

The head of an intelligence agency conducting an acquisition would be required to conduct an annual review to determine whether foreign intelligence information has been, or will be, obtained from the acquisition. The review would also be used to evaluate the adequacy of the agency’s minimization procedures. The review would provide an accounting of the number of disseminated intelligence reports containing reference to a United Statesperson identity; and the number of United States person identities subsequently disseminated by the relevant agency in response to requests for identities that were not originally referred to by name or title. The review would also provide the number of targets that were later determined to be located inside the United States and the number of persons located inside the United States whose communications were reviewed. Once completed, the annual review would be submitted to the FISA Court. 

Every six months, the AG would be required to submit a report on the implementation of this Act to the House and Senate intelligence committees and judiciary committees. The report would include any certifications; directives; significant judicial reviews (including the corresponding order or pleading); challenges to and enforcements of a directive; compliance reviews; incidents of non-compliance with a directive (including incidents of non-compliance by an intelligence agency and incidents of non-compliance by a recipient of a directive); any implementation procedures; and annual review conducted during the covered period. 

Sunset of the Provisions of Section 702

The amendment would provide that acquisitions under section 702 be deemed information acquired from an electronic surveillance pursuant to Title I for the purposes of section 106 (excluding section (j) of that section). 

Section 102.Statement of Exclusive Means by which Electronic Surveillance and Interception of Certain Communications may be Conducted.

Section 103.Submittal to Congress of Certain Court Orders Under the FISA.

Section 105.Issuance of an Order. The amendment would make various amendments to section 105 of FISA, including empowering the AG to authorize emergency employment of electronic surveillance for foreign intelligence purposes if he: 

·determines that there is not sufficient time to obtain a warrant for the surveillance and the facts are sufficient to support a warrant;

·concurrently informs a judge having jurisdiction of the decision to authorize emergency surveillance;

·seeks a warrant from a judge having jurisdiction within 168 hours (seven days) after the authorization; and

·requires that the necessary minimization procedures be followed.

In the absence of a warrant, the surveillance would end when the information sought is obtained, the application for a warrant is denied, or at the end of the 168 hours, whichever is earliest. The decision of the court is reviewable, but if the surveillance is not approved by a court, no information obtained or evidence derived from the emergency surveillance could be used as evidence, or otherwise disclosed, in any proceeding in or before an authority of the United States Further, unless the AG determines that there is a threat of death or serious bodily harm to any person, no information concerning anyUnited States person obtained in the acquisition could be used or disclosed by federal officers or employees without the person’s consent. 

Section 107.Amendments for Physical Searches. The amendment would make various amendments to section 303 of FISA, including empowering the AG to authorize emergency physical searches for foreign intelligence purposes if he: 

·determines that there is not sufficient time to obtain a warrant for the search and the facts are sufficient to support a warrant;

·concurrently informs a FISA judge of the decision to authorize an emergency search;

·seeks a warrant from a FISA judge within 168 hours (seven days) after the authorization; and

·requires that the necessary minimization procedures be followed. 

In the absence of a warrant, the search would end when the information sought is obtained, the application for a warrant is denied, or at the end of the 168 hours, whichever is earliest. The decision of the court would be reviewable, but if the surveillance is not approved by a court, no information obtained or evidence derived from the emergency search could be used as evidence, or otherwise disclosed, in any proceeding in or before an authority of the United States Further, unless the AG determines that there is a threat of death or serious bodily harm to any person, no information concerning anyUnited States person obtained in the acquisition could be used or disclosed by federal officers or employees without the person’s consent. 

Section 109.FISA Court. The amendment would amend provisions relating to the make-up of the court itself, including permitting the court on its own, or at the request of an authorized party, to hold a hearing or rehearing en banc (meaning with the full court) if necessary. An authorized judge could also grant a stay of, or modify, a lower court’s order during an appeal. 

Section 110.Review of Previous Actions. The amendment would require the IGs of the Department of Justice and relevant intelligence agencies to work together to complete a comprehensive audit of the Terrorist Surveillance Program and closely related activities, within 180 days after enactment of this Act. These agencies would be empowered to acquire all documents of the program(s). The IG would then be required to submit a report of the audit, with all reviewed documents included, to the House and Senate intelligence and judiciary committees. 

Additional Amendments

SenatorsFeingold and Dodd plan to offer an amendment to strike the retroactive immunity provisions of the Intelligence Committee bill. The DPC will distribute information on all other possible amendments as it becomes available.

Legislative History 

On October 26, 2007, the Senate Select Intelligence Committee favorably reported S. 2248, the FISA Amendments Act of 2007, by a vote of 13 to 2. On November 15, 2007, the Senate Judiciary Committee reported the measure with an amendment in the nature of a substitute by a vote of 10 to 9. This vote was ratified the following day. The Judiciary Committee’s substitute will be the pending amendment when the Senate proceeds to the consideration of S. 2248. On December 17, the Senate passed a motion to invoke cloture on the motion to proceed to consideration of S. 2248. 

On November 15, the House of Representatives passed, 227 to 189, a version of FISA Amendments Act of 2007, entitled the Responsible Electronic Surveillance Thatis Overseen, Reviewed, and Effective Act of 2007. (H.R. 3773). 

Statement of Administration Policy

 

On December 17, the Bush Administration issued a Statement of Administration Policy for S. 2248, the FISA Amendments Act of 2007. The statement addressed both the Intelligence Committee bill and the Judiciary Committee substitute amendment, offering its support for the former. The Statement can be accessed on the Office of Management and Budget’s website: http://www.whitehouse.gov/omb/legislative/sap/110-1/s2248sap-s.pdf. 

On November 15, 2007, the Bush Administration issued a Statement of Administration Policy criticizing H.R. 3773. The Statement can be accessed on the Office of Management and Budget’s website:

http://www.whitehouse.gov/omb/legislative/sap/110-1/hr3773sap-h.pdf.

DPC