House Report 112-645, Part 2 - 112th Congress (2011-2012)
August 02, 2012, As Reported by the Intelligence (Permanent) Committee

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House Report 112-645 - FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012




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


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

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



 
            FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012

                                _______
                                

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

                                _______
                                

    Mr. Rogers of Michigan, from the Permanent Select Committee on 
                 Intelligence, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 5949]

      [Including cost estimate of the Congressional Budget Office]

    The Permanent Select Committee on Intelligence, to whom was 
referred the bill (H.R. 5949) to extend the FISA Amendments Act 
of 2008 for five years, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

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

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

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

                          Purpose and Summary

    The purpose of H.R. 5949 is to extend the authorities 
contained in the FISA Amendments Act of 2008 (``FAA''), 
currently set to expire on December 31, 2012, to December 31, 
2017.

                     Committee Statement and Views


                            A. INTRODUCTION

    In 2008, with significant bipartisan support, Congress 
passed the FAA. The FAA modernized the Foreign Intelligence 
Surveillance Act of 1978 to account for significant changes in 
technology that made the 30 year-old law an impractical and 
ineffective tool for combatting the quickly evolving threats 
facing our nation. The FAA gave our intelligence community the 
speed and agility necessary to meaningfully collect foreign 
intelligence while still preserving civil liberties. H.R. 5949 
would extend the FAA for five years.
    H.R. 5949 was requested by the Executive Branch. The 
Director of National Intelligence and Attorney General have 
stated that reauthorization of the FAA, which will expire at 
the end of this year if Congress does not act, is ``the top 
legislative priority of the Intelligence Community.''
    In seeking a clean extension of the FAA, the Administration 
has stated that the FAA ``allows the Intelligence Community to 
collect vital information about international terrorists and 
other important targets overseas'' while, ``at the same time . 
. . provid[ing] a comprehensive regime of oversight by all 
three branches of Government to protect the privacy and civil 
liberties of U.S. persons.'' Moreover, the Administration has 
stated that collection under the FAA is ``vital in keeping the 
nation safe'' and that the ``[f]ailure to reauthorize [the FAA] 
would result in a loss of significant intelligence and impede 
the ability of the Intelligence Community to respond quickly to 
new threats and intelligence opportunities.'' (Emphasis added).
    H.R. 5949 would reauthorize the FAA for five years from its 
current expiration date, extending its authorities through 
December 31, 2017. Consistent with the Administration's 
request, H.R. 5949, as reported, makes no modifications to the 
original FAA. The Committee notes, however, that it continues 
to review whether amendments should be made in the future to 
strengthen authorities and oversight procedures, consistent 
with issues identified as part of the Committee's oversight, 
the needs of the Intelligence Community, and civil liberties 
protections.

    B. FOREIGN INTELLIGENCE COLLECTION UNDER THE FISA AMENDMENTS ACT

    The FAA authorizes intelligence collection targeted against 
non-U.S. persons located outside the United States. It permits 
this collection to take place only under statutorily-required, 
court approved targeting and minimization procedures. Such 
procedures are designed to ensure that the government's 
surveillance under this authority does not target Americans 
anywhere in the world and, to ensure that if and when the 
communications of Americans are incidentally intercepted, they 
are handled pursuant to specific procedures designed to protect 
the rights of such individuals, as approved by the court.
    It is also important to note that the FAA significantly 
increased protections for Americans around the world by 
requiring that any electronic surveillance targeting a U.S. 
person, no matter where they are located, be conducted pursuant 
to court order. Prior to 2008, targeting U.S. persons located 
outside the United States for intelligence collection only 
required Attorney General authorization in many circumstances. 
If Congress does not reauthorize the FAA, the requirement for 
court approval for such surveillance will also expire.
    The importance of the collection of foreign intelligence 
under the FISA Amendments Act--while challenging to describe in 
detail in an unclassified setting--cannot be underscored 
enough. In short, intelligence collected under the FAA is 
critically important to maintaining our national security. The 
information collected under this authority is often unique, 
unavailable from any other source, and regularly provides 
critically important insights and operationally actionable 
intelligence on terrorists and foreign intelligence targets 
around the world.
    The Attorney General and Director of National Intelligence 
have provided the following unclassified description of 
specific, actionable intelligence that was obtained through the 
unique contribution of collection under the FISA Amendments 
Act:

          It provides information about the plans and 
        identities of terrorists, allowing us to glimpse inside 
        terrorist organizations and obtain information about 
        how those groups function and receive support. In 
        addition, it lets us collect information about the 
        intentions and capabilities of weapons proliferators 
        and other foreign adversaries who threaten the United 
        States.

    The intelligence community has provided the intelligence 
committees in both the House and the Senate with additional 
details on the examples discussed above in a classified 
setting, as well as other even more compelling examples of 
specific, actionable intelligence obtained through the unique 
lens of FISA Amendments Act collections. In addition, the 
Permanent Select Committee on Intelligence has and will 
continue to make available classified information to all 
Members of the House regarding the information collected under 
the FISA Amendments Act prior to consideration of the extension 
by the House. The Committee believes that it is important for 
all Members to have a better opportunity to understand how 
critically important the information obtained under these 
authorities is to our national security and hopes Members will 
avail themselves of the opportunity to gain a better 
understating of the FAA.

C. OVERSIGHT REGARDING COLLECTIONS CONDUCTED UNDER THE FISA AMENDMENTS 
                                  ACT

    Collection under the FAA is subject to extensive oversight 
by all three branches of government. By statute, the Executive 
Branch is required to conduct detailed oversight over 
collection conducted under the FAA and to report to Congress 
with respect to this oversight. Specifically, the FISA 
Amendments Act requires: (1) the Attorney General and Director 
of National Intelligence to conduct semiannual assessments of 
compliance with targeting and minimization procedures and 
provided them to Congress; (2) the Inspectors General of the 
Department of Justice and certain elements of the Intelligence 
Community to conduct reviews of the implementation of certain 
FISA Amendments Act authorities and provide them to Congress; 
(3) the heads of the elements of the intelligence community 
conducting collection under the FAA to conduct annual reviews 
of the implementation of certain FAA authorities and provide 
them to Congress; (4) the Attorney General to provide to 
Congress a comprehensive semiannual report on the 
implementation of the FAA, including a description of all 
compliance incidents.
    In addition, the Attorney General is required, under other 
provisions of FISA, to provide a semiannual report to Congress 
on the implementation of FISA generally, including summaries of 
significant legal interpretations of FISA made by the Foreign 
Intelligence Surveillance Court or the Foreign Intelligence 
Surveillance Court of Review, and copies of all decisions, 
orders, or opinions of these courts or government pleadings 
that include a significant construction or interpretation of 
FISA. The Executive Branch also conducts its oversight through 
on-site reviews conducted every 60 days by the Department of 
Justice's National Security Division and the Office of the 
Director of National Intelligence.
    Likewise, the Legislative Branch conducts extensive 
oversight over collections conducted under the FAA. As noted 
above, statutes require the provision of detailed information 
to the Congressional intelligence and judiciary committees 
regarding the oversight conducted by the Executive Branch and 
reports of noncompliance with statutes and required procedures. 
Since the passage of the FAA, the House Permanent Select 
Committee on Intelligence has conducted extensive oversight on 
the implementation of this legislation and the collection 
conducted under its authority. In the 112th Congress alone, the 
House Intelligence Committee has conducted two hearings and 
over a dozen meetings and briefings specifically focused on 
FISA and FAA.
    Finally, the Judicial Branch, through the Foreign 
Intelligence Surveillance Court, conducts its own independent 
oversight of collection under the FISA Amendments Act through 
its review of government certifications and targeting and 
minimization procedures. The record before this Committee 
indicates that the Foreign Intelligence Surveillance Court 
takes its job very seriously, oftentimes digging deep into the 
details of the government's collection methodology and 
procedures, including the government's efforts to fully comply 
with the law. And, rather than simply admonishing the 
government when it experiences unavoidable compliance issues, a 
review of the classified record presented to the Committee 
demonstrates that the Court often strongly encourages the 
government to impose stringent requirements upon itself to 
address or ameliorate compliance issues, often going well 
beyond the requirements of the FISA statute and the Fourth 
Amendment.
    The oversight this Committee has conducted since the FAA 
was enacted in 2008 has shown no evidence that the Intelligence 
Community has engaged in any intentional or willful failure to 
comply with statutory requirements or Executive Branch policies 
and procedures.

   D. CHALLENGES IN COLLECTION AND OVERSIGHT MATTERS UNDER THE FISA 
                             AMENDMENTS ACT

    As the Committee reports H.R. 5949 to the full House and 
urges a clean extension for five years, it is important to note 
that the classified record before the Committee makes clear 
that there are specific amendments to the FAA that would 
substantially improve the government's ability to collect 
foreign intelligence while also appropriately protecting the 
rights of Americans.
    A detailed discussion of potential changes to the 
authorities is outside the scope of this report. The Committee 
notes, however, that possible future amendments might be 
beneficial to ensure the government can collect on the full 
scope of communication techniques used by terrorists and other 
foreign intelligence targets. Future amendments may also 
clarify the appropriate scope and detail of the Foreign 
Intelligence Court's review of certifications and other FAA 
matters, (including the remedial authority of that Court), and 
address the Executive Branch's responsibility to provide full 
and timely information to Congress regarding its analysis of 
legal matters before the Foreign Intelligence Surveillance 
Court. The Committee is fully aware and cognizant of these 
matters and is prepared to return to consideration of them at 
the appropriate juncture.

                             E. CONCLUSION

    If Congress does not reauthorize the authorities proposed 
to be extended by H.R. 5949 the risk of potential catastrophic 
results is real and significant. The Committee has conducted 
substantial, ongoing, detailed oversight and the record 
supports extension for--at a minimum--the proposed five-year 
period. The Committee therefore unanimously reports H.R. 5949 
favorably and urges the House to approve it expeditiously in 
the interest of our national security.

                           Committee Hearings

    The Committee held two hearings and multiple classified 
briefings in the 112th Congress on the implementation of and 
performance under authorities that would be extended by this 
bill.

               Committee Consideration and Rollcall Votes

    On June 28, 2012, the Committee met in open session and 
considered the bill H.R. 5949. Ms. Schakowsky offered an 
amendment to H.R. 5949 that would amend the date of sunset from 
December 31, 2017 to June 1, 2015.
    The amendment was not agreed to by a record vote of 13 noes 
and 4 ayes:
    Noes: Mr. Rogers (Chairman), Mr. Thornberry, Mrs. Myrick, 
Mr. Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr. 
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Langevin, Mr. 
Chandler.
    Ayes: Mr. Thompson, Ms. Schakowsky, Mr. Schiff, Mr. 
Gutierrez.
    Ms. Schakowsky offered an amendment that would amend the 
form of the assessments of procedures targeting certain persons 
located outside the United States. The amendment was not agreed 
to by a record vote of 15 noes and 2 ayes:
    Noes: Chairman Rogers, Mr. Thornberry, Mrs. Myrick, Mr. 
Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr. 
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Thompson, Mr. 
Langevin, Mr. Schiff, Mr. Chandler.
    Ayes: Ms. Schakowsky, Mr. Gutierrez.
    The Committee then adopted a motion by the Chairman to 
favorably report the bill H.R. 5949 to the House. The motion 
was agreed to by record vote of 17 ayes and 0 noes.
    Ayes: Mr. Rogers (Chairman), Mr. Thornberry, Mrs. Myrick, 
Mr. Miller, Mr. Conaway, Mr. King, Mr. LoBiondo, Mr. Nunes, Mr. 
Rooney, Mr. Heck, Mr. Ruppersberger, Mr. Thompson, Ms. 
Schakowsky, Mr. Langevin, Mr. Schiff, Mr. Gutierrez, Mr. 
Chandler.
    Noes: None.

              Section-by-Section Analysis and Explanation


Section 1. Short Title

    The short title of the Act is the FISA Amendments Act 
Reauthorization Act of 2012.

Section 2. Five-Year Extension of the FISA Amendments Act

Section [  ]: In General

    This section of the Act amends Section 403 of the FISA 
Amendments Act of 2008 by striking December 31, 2012 and 
replacing it with December 31, 2017, in each appropriate 
location in order to extend the expiration of the FISA 
Amendments Act for five years. In addition, this section of the 
Act makes conforming changes to other appropriate portions of 
the FISA Amendments Act.

                 Oversight Findings and Recommendations

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives. The Committee held two 
hearings and multiple classified briefings in the 112th 
Congress on the implementation of and performance under 
authorities that would be extended by this bill. The findings 
have been incorporated in the Committee's classified annex to 
annual Intelligence Authorization bills. In addition, the bill 
extends requirements to include FAA provisions in the Attorney 
General's long existing semi-annual report, and additional, 
extensive semi-annual reporting to Congress on the new 
authorities. The bill, as reported by the Committee, reflects 
conclusions reached by the Committee in light of this oversight 
activity. The Committee's views are further described in the 
descriptive portions of this report.

                General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, this legislation does not 
authorize funding, and therefore clause 3(c)(4) does not apply. 
The Committee's general performance goals and objectives for 
the legislation are, however, reflected in the descriptive 
portions of this report.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. In compliance with this requirement, the Committee 
has received a letter from the Congressional Budget Office 
included herein.

                  Statement on Congressional Earmarks

    Pursuant to clause 9 of rule XXI of the Rules of the House 
of Representatives, the Committee states that the bill as 
reported contains no congressional earmarks, limited tax 
benefits, or limited tariff benefits.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 5949 from the Director of 
the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 19, 2012.
Hon. Mike Rogers,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: 
    The Congressional Budget Office has prepared the enclosed 
cost estimate for H.R. 5949, the FISA Amendments Act 
Reauthorization Act of 2012.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

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

    H.R. 5949 would extend the authority of the federal 
government to conduct surveillance pursuant to the FISA 
Amendments Act of 2008 (Public Law 110-261). Because CBO does 
not provide cost estimates for classified programs, this 
estimate addresses only the budgetary effects on unclassified 
programs affected by the bill. On that basis, CBO estimates 
that implementing H.R. 5949 would have no significant cost to 
the federal government.
    Enacting the bill could affect direct spending and 
revenues; therefore, pay-as-you-go procedures apply. However, 
CBO estimates that any effects would be insignificant for each 
year.
    The FISA Amendments Act of 2008 clarified the authority of 
the federal government to surveil and intercept communications 
of certain persons located outside the United States. H.R. 5949 
would extend the provisions of that act by five years 
(otherwise they expire after December 31, 2012). As a result, 
the government might be able to prosecute criminal cases that 
it otherwise would not be able to pursue. CBO expects that H.R. 
5949 would apply to a relatively small number of additional 
offenders, however, so any increase in costs for law 
enforcement, court proceedings, or prison operations would not 
be significant. Any such costs would be subject to the 
availability of appropriated funds.
    Because those prosecuted and convicted under H.R. 5949 
could be subject to criminal fines, the federal government 
might collect additional fines if the legislation is enacted. 
Criminal fines are deposited as revenues in the Crime Victims 
Fund and later spent. CBO expects that any additional revenues 
and direct spending would not be significant because of the 
relatively small number of cases likely to be affected.
    The bill would impose both private-sector and 
intergovernmental mandates by extending an existing mandate 
that would limit civil actions and require providers of 
communication services to provide information. There is little 
information about the prevalence of electronic surveillance in 
those cases or the scope or size of potential awards from such 
cases. Consequently, CBO cannot determine whether the costs of 
those mandates would exceed the annual threshold established by 
the Unfunded Mandates Reform Act (UMRA) for private-sector 
mandates ($146 million in 2012, adjusted annually for 
inflation). However, few public entities receive requests for 
such information, and the costs on them would be small. The 
bill also would extend an existing preemption on state and 
local governments regarding legal rights of action. CBO 
estimates that the costs to public entities of all the 
intergovernmental mandates in the bill would be small and well 
below the annual threshold established in UMRA ($73 million in 
2012, adjusted annually for inflation).
    On July 2, 2012, CBO transmitted a cost estimate for H.R. 
5949, the FISA Amendments Act Reauthorization Act of 2012, as 
ordered reported by the House Committee on the Judiciary on 
June 19, 2012. Both versions of H.R. 5949 and their estimated 
costs are the same. On July 19, 2012, CBO also transmitted a 
cost estimate for S. 3276, the FISA Amendments Act 
Reauthorization Act of 2012, as reported by the Senate Select 
Committee on Intelligence on June 7, 2012. That bill is very 
similar to both versions of H.R. 5949, and the estimated costs 
are also the same.
    The CBO staff contacts for this estimate are Jason Wheelock 
and Mark Grabowicz (for federal costs), J'nell L. Blanco (for 
the impact on state and local governments), and Elizabeth Bass 
(for the impact on the private sector). The estimate was 
approved by Theresa Gullo, Deputy Assistant Director for Budget 
Analysis.

         Changes in Existing Law Made by the Bill, as Reported

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

FISA AMENDMENTS ACT OF 2008

           *       *       *       *       *       *       *



TITLE IV--OTHER PROVISIONS

           *       *       *       *       *       *       *


SEC. 403. REPEALS.

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

           *       *       *       *       *       *       *


SEC. 404. TRANSITION PROCEDURES.

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

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    As Members of the House Intelligence Committee, we have a 
uniquely dual responsibility to ensure the Intelligence 
Community has the resources, tools, and authorities needed to 
protect America, and that the civil liberties of U.S. persons 
are protected in the course of pursuing this goal. The 
uniqueness of the responsibility is particularly relevant in 
the context of the FISA Amendments Act (FAA) Reauthorization 
Act of 2012.
    The FAA provides the government with several of the 
authorities it needs to facilitate our national security. As 
members of the House Intelligence Committee, we have received 
briefings on several of the benefits and accomplishments of 
actions conducting using this authority. We are confident that 
agency personnel implementing this authority do so with 
deliberate consideration of the law. We are also confident that 
the authority has proven beneficial to the protection of our 
national security.
    As Democrats on the House Intelligence Committee, we remain 
particularly committed to keeping our citizens informed, 
without providing our adversaries with information that can be 
used to circumvent our national security efforts. Amendments 
offered by Rep. Schakowsky emphasized several factors that were 
considered in the course of drafting this legislation.
    The goal of the first amendment was to shorten the sunset 
provision of December 31, 2017 to June 1, 2015. This would 
ensure a more timely review of the Executive branch's use of 
this authority. Delaying the responsibility to review this 
authority for 5 years is too long. We will be in the 115th 
Congress, an entire presidential administration will have 
passed, and all without a statutory demand to reconsider and 
potentially realign this law with the desires of the American 
people. The proposed amendment was one way to give Congress the 
opportunity to ensure the implementation of this authority 
matched its aspirations.
    The goal of the second amendment was to create an 
unclassified version of the Intelligence Community's numerous 
assessments and reviews reports. This would make certain that 
Congress could provide the public with an understanding of the 
actions of their government. The Foreign Intelligence 
Surveillance Act was initially passed to curb abuses in the 
collection and use of intelligence information, foreign and 
domestic. The FISA Amendments Act of 2008 goes a step further 
by authorizing the government to collect foreign intelligence 
information reasonably believed to be outside the United States 
without a warrant. Today, the Intelligence Community conducts 
oversight, the Foreign Intelligence Surveillance Court reviews 
the procedures for legal sufficiency, and the Intelligence 
Committee conducts its own oversight of this effort. Nearly all 
of this oversight, however, is conducted in secret.
    While the Committee has the benefit and responsibility of 
having access to classified information, it is important that 
the public has an understanding of the foreign intelligence 
surveillance conducted under the FAA. The amendment to craft an 
unclassified report on the reviews that are conducted is a 
modest step towards that understanding.
    Americans have the right to be informed that the Government 
uses its authorities narrowly, responsibly, and exclusively for 
foreign intelligence purposes. We will continue to strive to 
provide this assurance to our citizens. While the amendments 
were not adopted, they reflect several of the factors that were 
considered by this committee in the course of reaching its bi-
partisan 17-0 vote in favor of the bill. This vote reflects a 
tradition of fully considering the tensions between security 
and civil liberties when crafting intelligence related 
legislation.
                                   Jan Schakowsky.
                                   Luis Gutierrez.