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[From the U.S. Government Publishing Office]
113th Congress Rept.
2d Session } HOUSE OF REPRESENTATIVES { 13-452 Part 1
======================================================================
USA FREEDOM ACT
_______
May 15, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3361]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3361) to reform the authorities of the Federal
Government to require the production of certain business
records, conduct electronic surveillance, use pen registers and
trap and trace devices, and use other forms of information
gathering for foreign intelligence, counterterrorism, and
criminal purposes, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 3
Purpose and Summary.............................................. 13
Background and Need for the Legislation.......................... 13
Hearings......................................................... 18
Committee Consideration.......................................... 18
Committee Votes.................................................. 18
Committee Oversight Findings..................................... 21
New Budget Authority and Tax Expenditures........................ 22
Congressional Budget Office Cost Estimate........................ 22
Duplication of Federal Programs.................................. 24
Disclosure of Directed Rule Makings.............................. 24
Performance Goals and Objectives................................. 24
Advisory on Earmarks............................................. 24
Section-by-Section Analysis...................................... 24
Agency Views..................................................... 30
Changes in Existing Law Made by the Bill, as Reported............ 33
Additional Views................................................. 53
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``USA FREEDOM Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendments to the Foreign Intelligence Surveillance Act of
1978.
TITLE I--FISA BUSINESS RECORDS REFORMS
Sec. 101. Additional requirements for call detail records.
Sec. 102. Emergency authority.
Sec. 103. Prohibition on bulk collection of tangible things.
Sec. 104. Judicial review of minimization procedures for the production
of tangible things.
Sec. 105. Liability protection.
Sec. 106. Compensation for assistance.
Sec. 107. Definitions.
Sec. 108. Inspector general reports on business records orders.
Sec. 109. Effective date.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
Sec. 201. Prohibition on bulk collection.
Sec. 202. Minimization procedures.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
Sec. 301. Prohibition on reverse targeting.
Sec. 302. Minimization procedures.
Sec. 303. Limits on use of unlawfully obtained information.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401. Appointment of amicus curiae.
Sec. 402. Declassification of decisions, orders, and opinions.
TITLE V--NATIONAL SECURITY LETTER REFORM
Sec. 501. Prohibition on bulk collection.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
Sec. 601. Additional reporting on orders requiring production of
business records.
Sec. 602. Business records compliance reports to Congress.
Sec. 603. Annual report by the Director of the Administrative Office of
the United States Courts on orders entered.
Sec. 604. Public reporting by persons subject to FISA orders.
Sec. 605. Reporting requirements for decisions of the Foreign
Intelligence Surveillance Court.
Sec. 606. Submission of reports under FISA.
TITLE VII--SUNSETS
Sec. 701. Sunsets.
SEC. 2. AMENDMENTS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or a
repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
TITLE I--FISA BUSINESS RECORDS REFORMS
SEC. 101. ADDITIONAL REQUIREMENTS FOR CALL DETAIL RECORDS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)) is
amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking
``a statement'' and inserting ``in the case of an
application other than an application described in
subparagraph (C), a statement''; and
(B) in clause (iii), by striking ``; and'' and
inserting a semicolon;
(2) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (D), respectively; and
(3) by inserting after subparagraph (B) (as so redesignated)
the following new subparagraph:
``(C) in the case of an application for the
production of call detail records created on or after
the date of the application, a statement of facts
showing that--
``(i) there are reasonable grounds to believe
that the call detail records sought to be
produced based on the specific selection term
required under subparagraph (A) are relevant to
an authorized investigation (other than a
threat assessment) conducted in accordance with
subsection (a)(2) to protect against
international terrorism; and
``(ii) there are facts giving rise to a
reasonable, articulable suspicion that such
specific selection term is associated with a
foreign power or an agent of a foreign power;
and''.
(b) Order.--Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is amended--
(1) in subparagraph (D), by striking ``; and'' and inserting
a semicolon;
(2) in subparagraph (E), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new subparagraph:
``(F) in the case of an application described in
subsection (b)(2)(C), shall--
``(i) authorize the production of call detail
records for a period not to exceed 180 days;
``(ii) provide that an order for such
production may be extended upon application
under subsection (b) and the judicial finding
under paragraph (1);
``(iii) provide that the Government may
require the production of call detail records--
``(I) using the specific selection
term that satisfies the standard
required under subsection (b)(2)(C)(ii)
as the basis for production; and
``(II) using the results of the
production under subclause (I) as the
basis for production;
``(iv) direct each person the Government
directs to produce call detail records under
the order to furnish the Government forthwith
all information, facilities, or technical
assistance necessary to accomplish the
production in such a manner as will protect the
secrecy of the production and produce a minimum
of interference with the services that such
person is providing to each subject of the
production; and
``(v) direct the Government to destroy all
call detail records produced under the order
not later than 5 years after the date of the
production of such records, except for records
that are relevant to an authorized
investigation (other than a threat assessment)
conducted in accordance with subsection (a)(2)
to protect against international terrorism.''.
SEC. 102. EMERGENCY AUTHORITY.
(a) Authority.--Section 501 (50 U.S.C. 1861) is amended by adding at
the end the following new subsection:
``(i) Emergency Authority for Production of Tangible Things.--
``(1) Notwithstanding any other provision of this section,
the Attorney General may require the emergency production of
tangible things if the Attorney General--
``(A) reasonably determines that an emergency
situation requires the production of tangible things
before an order authorizing such production can with
due diligence be obtained;
``(B) reasonably determines that the factual basis
for the issuance of an order under this section to
approve such production of tangible things exists;
``(C) informs, either personally or through a
designee, a judge having jurisdiction under this
section at the time the Attorney General requires the
emergency production of tangible things that the
decision has been made to employ the authority under
this subsection; and
``(D) makes an application in accordance with this
section to a judge having jurisdiction under this
section as soon as practicable, but not later than 7
days after the Attorney General requires the emergency
production of tangible things under this subsection.
``(2) If the Attorney General authorizes the emergency
production of tangible things under paragraph (1), the Attorney
General shall require that the minimization procedures required
by this section for the issuance of a judicial order be
followed.
``(3) In the absence of a judicial order approving the
production of tangible things under this subsection, the
production shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time the Attorney
General begins requiring the emergency production of such
tangible things, whichever is earliest.
``(4) A denial of the application made under this subsection
may be reviewed as provided in this section.
``(5) If such application for approval is denied, or in any
other case where the production of tangible things is
terminated and no order is issued approving the production, no
information obtained or evidence derived from such production
shall be received in evidence or otherwise disclosed in any
trial, hearing, or other proceeding in or before any court,
grand jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United States,
a State, or political subdivision thereof, and no information
concerning any United States person acquired from such
production shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of
such person, except with the approval of the Attorney General
if the information indicates a threat of death or serious
bodily harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(b) Conforming Amendment.--Section 501(d) (50 U.S.C. 1861(d)) is
amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by
striking ``pursuant to an order'' and inserting
``pursuant to an order issued or an emergency
production required'';
(B) in subparagraph (A), by striking ``such order''
and inserting ``such order or such emergency
production''; and
(C) in subparagraph (B), by striking ``the order''
and inserting ``the order or the emergency
production''; and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``an order'' and
inserting ``an order or emergency production''; and
(B) in subparagraph (B), by striking ``an order'' and
inserting ``an order or emergency production''.
SEC. 103. PROHIBITION ON BULK COLLECTION OF TANGIBLE THINGS.
(a) Application.--Section 501(b)(2) (50 U.S.C. 1861(b)(2)), as
amended by section 101(a) of this Act, is further amended by inserting
before subparagraph (B), as redesignated by such section 101(a) of this
Act, the following new subparagraph:
``(A) a specific selection term to be used as the
basis for the production of the tangible things
sought;''.
(b) Order.--Section 501(c) (50 U.S.C. 1861(c)) is amended--
(1) in paragraph (2)(A), by striking the semicolon and
inserting ``, including each specific selection term to be used
as the basis for the production;''; and
(2) by adding at the end the following new paragraph:
``(3) No order issued under this subsection may authorize the
collection of tangible things without the use of a specific selection
term that meets the requirements of subsection (b)(2).''.
SEC. 104. JUDICIAL REVIEW OF MINIMIZATION PROCEDURES FOR THE PRODUCTION
OF TANGIBLE THINGS.
Section 501(c)(1) (50 U.S.C. 1861(c)(1)) is amended by inserting
after ``subsections (a) and (b)'' the following: ``and that the
minimization procedures submitted in accordance with subsection
(b)(2)(D) meet the definition of minimization procedures under
subsection (g)''.
SEC. 105. LIABILITY PROTECTION.
Section 501(e) (50 U.S.C. 1861(e)) is amended to read as follows:
``(e) No cause of action shall lie in any court against a person who
produces tangible things or provides information, facilities, or
technical assistance pursuant to an order issued or an emergency
production required under this section. Such production shall not be
deemed to constitute a waiver of any privilege in any other proceeding
or context.''.
SEC. 106. COMPENSATION FOR ASSISTANCE.
Section 501 (50 U.S.C. 1861), as amended by section 102 of this Act,
is further amended by adding at the end the following new subsection:
``(j) Compensation.--The Government shall compensate, at the
prevailing rate, a person for producing tangible things or providing
information, facilities, or assistance in accordance with an order
issued or an emergency production required under this section.''.
SEC. 107. DEFINITIONS.
Section 501 (50 U.S.C. 1861), as amended by section 106 of this Act,
is further amended by adding at the end the following new subsection:
``(k) Definitions.--In this section:
``(1) Call detail record defined.--The term `call detail
record'--
``(A) means session identifying information
(including originating or terminating telephone number,
International Mobile Subscriber Identity number, or
International Mobile Station Equipment Identity
number), a telephone calling card number, or the time
or duration of a call; and
``(B) does not include--
``(i) the contents of any communication (as
defined in section 2510(8) of title 18, United
States Code);
``(ii) the name, address, or financial
information of a subscriber or customer; or
``(iii) cell site location information.
``(2) Specific selection term.--The term `specific selection
term' means a term used to uniquely describe a person, entity,
or account.''.
SEC. 108. INSPECTOR GENERAL REPORTS ON BUSINESS RECORDS ORDERS.
Section 106A of the USA PATRIOT Improvement and Reauthorization Act
of 2005 (Public Law 109-177; 120 Stat. 200) is amended--
(1) in subsection (b)--
(A) in paragraph (1), by inserting ``and calendar
years 2012 through 2014'' after ``2006'';
(B) by striking paragraphs (2) and (3);
(C) by redesignating paragraphs (4) and (5) as
paragraphs (2) and (3), respectively; and
(D) in paragraph (3) (as so redesignated)--
(i) by striking subparagraph (C) and
inserting the following new subparagraph:
``(C) with respect to calendar years 2012 through
2014, an examination of the minimization procedures
used in relation to orders under section 501 of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the minimization procedures
adequately protect the constitutional rights of United
States persons;''; and
(ii) in subparagraph (D), by striking ``(as
such term is defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C.
401a(4)))'';
(2) in subsection (c), by adding at the end the following new
paragraph:
``(3) Calendar years 2012 through 2014.--Not later than
December 31, 2015, the Inspector General of the Department of
Justice shall submit to the Committee on the Judiciary and the
Select Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence of the House of Representatives a report
containing the results of the audit conducted under subsection
(a) for calendar years 2012 through 2014.'';
(3) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(4) by inserting after subsection (c) the following new
subsection:
``(d) Intelligence Assessment.--
``(1) In general.--For the period beginning on January 1,
2012, and ending on December 31, 2014, the Inspector General of
the Intelligence Community shall assess--
``(A) the importance of the information acquired
under title V of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1861 et seq.) to the activities
of the intelligence community;
``(B) the manner in which that information was
collected, retained, analyzed, and disseminated by the
intelligence community;
``(C) the minimization procedures used by elements of
the intelligence community under such title and whether
the minimization procedures adequately protect the
constitutional rights of United States persons; and
``(D) any minimization procedures proposed by an
element of the intelligence community under such title
that were modified or denied by the court established
under section 103(a) of such Act (50 U.S.C. 1803(a)).
``(2) Submission date for assessment.--Not later than
December 31, 2015, the Inspector General of the Intelligence
Community shall submit to the Committee on the Judiciary and
the Select Committee on Intelligence of the Senate and the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence of the House of Representatives a report
containing the results of the assessment for calendar years
2012 through 2014.'';
(5) in subsection (e), as redesignated by paragraph (3)--
(A) in paragraph (1)--
(i) by striking ``a report under subsection
(c)(1) or (c)(2)'' and inserting ``any report
under subsection (c) or (d)''; and
(ii) by striking ``Inspector General of the
Department of Justice'' and inserting
``Inspector General of the Department of
Justice, the Inspector General of the
Intelligence Community, and any Inspector
General of an element of the intelligence
community that prepares a report to assist the
Inspector General of the Department of Justice
or the Inspector General of the Intelligence
Community in complying with the requirements of
this section''; and
(B) in paragraph (2), by striking ``the reports
submitted under subsections (c)(1) and (c)(2)'' and
inserting ``any report submitted under subsection (c)
or (d)'';
(6) in subsection (f), as redesignated by paragraph (3)--
(A) by striking ``The reports submitted under
subsections (c)(1) and (c)(2)'' and inserting ``Each
report submitted under subsection (c)''; and
(B) by striking ``subsection (d)(2)'' and inserting
``subsection (e)(2)''; and
(7) by adding at the end the following new subsection:
``(g) Definitions.--In this section:
``(1) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3 of the
National Security Act of 1947 (50 U.S.C. 3003).
``(2) United states person.--The term `United States person'
has the meaning given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).''.
SEC. 109. EFFECTIVE DATE.
The amendments made by sections 101 through 103 shall take effect on
the date that is 180 days after the date of the enactment of this Act.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
SEC. 201. PROHIBITION ON BULK COLLECTION.
(a) Prohibition.--Section 402(c) (50 U.S.C. 1842(c)) is amended--
(1) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (2), by striking the period and inserting a
semicolon; and
(3) by adding at the end the following new paragraph:
``(3) a specific selection term to be used as the basis for
selecting the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied;
and''.
(b) Definition.--Section 401 (50 U.S.C. 1841) is amended by adding at
the end the following new paragraph:
``(4) The term `specific selection term' has the meaning
given the term in section 501.''.
SEC. 202. MINIMIZATION PROCEDURES.
(a) Definition.--Section 401 (50 U.S.C. 1841), as amended by section
201 of this Act, is further amended by adding at the end the following
new paragraph:
``(5) The term `minimization procedures' means--
``(A) specific procedures that are reasonably
designed in light of the purpose and technique of an
order for the installation and use of a pen register or
trap and trace device to minimize the retention and
prohibit the dissemination of nonpublicly available
information concerning unconsenting United States
persons consistent with the need of the United States
to obtain, produce, and disseminate foreign
intelligence information;
``(B) procedures that require that nonpublicly
available information, which is not foreign
intelligence information, as defined in section
101(e)(1), shall not be disseminated in a manner that
identifies any United States person, without such
person's consent, unless such person's identity is
necessary to understand foreign intelligence
information or assess its importance; and
``(C) notwithstanding subparagraphs (A) and (B),
procedures that allow for the retention and
dissemination of information that is evidence of a
crime which has been, is being, or is about to be
committed and that is to be retained or disseminated
for law enforcement purposes.''.
(b) Application.--Section 402(c) (50 U.S.C. 1842(c)), as amended by
section 201 of this Act, is further amended by adding at the end the
following new paragraph:
``(4) a statement of proposed minimization procedures.''.
(c) Order.--Section 402(d) (50 U.S.C. 1842(d)) is amended--
(1) in paragraph (1), by inserting ``and that the proposed
minimization procedures meet the definition of minimization
procedures under this title'' before the period at the end; and
(2) in paragraph (2)(B)--
(A) in clause (ii)(II), by striking ``; and'' and
inserting a semicolon; and
(B) by adding at the end the following new clause:
``(iv) the minimization procedures be followed;
and''.
(d) Compliance Assessment.--Section 402 (50 U.S.C. 1842) is amended
by adding at the end the following new subsection:
``(h) At or before the end of the period of time for which the
installation and use of a pen register or trap and trace device is
approved under an order or an extension under this section, the judge
may assess compliance with the minimization procedures by reviewing the
circumstances under which information concerning United States persons
was retained or disseminated.''.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
SEC. 301. PROHIBITION ON REVERSE TARGETING.
Section 702(b)(2) (50 U.S.C. 1881a(b)(2)) is amended by striking
``the purpose'' and inserting ``a purpose''.
SEC. 302. MINIMIZATION PROCEDURES.
Section 702(e)(1) (50 U.S.C. 1881a(e)(1)) is amended--
(1) by striking ``that meet'' and inserting the following:
``that--
``(A) meet'';
(2) in subparagraph (A) (as designated by paragraph (1) of
this section), by striking the period and inserting ``; and'';
and
(3) by adding at the end the following new subparagraph:
``(B) consistent with such definition, minimize the
acquisition, and prohibit the retention and
dissemination, of any communication as to which the
sender and all intended recipients are determined to be
located in the United States and prohibit the use of
any discrete, non-target communication that is
determined to be to or from a United States person or a
person who appears to be located in the United States,
except to protect against an immediate threat to human
life.''.
SEC. 303. LIMITS ON USE OF UNLAWFULLY OBTAINED INFORMATION.
Section 702(i)(3) (50 U.S.C. 1881a(i)(3)) is amended by adding at the
end the following new subparagraph:
``(D) Limitation on use of information.--
``(i) In general.--Except as provided in
clause (ii), no information obtained or
evidence derived from an acquisition pursuant
to a certification or targeting or minimization
procedures subject to an order under
subparagraph (B) concerning any United States
person shall be received in evidence or
otherwise disclosed in any trial, hearing, or
other proceeding in or before any court, grand
jury, department, office, agency, regulatory
body, legislative committee, or other authority
of the United States, a State, or political
subdivision thereof, and no information
concerning any United States person acquired
from the acquisition shall subsequently be used
or disclosed in any other manner by Federal
officers or employees without the consent of
the United States person, except with the
approval of the Attorney General if the
information indicates a threat of death or
serious bodily harm to any person.
``(ii) Exception.--If the Government corrects
any deficiency identified by the order of the
Court under subparagraph (B), the Court may
permit the use or disclosure of information
acquired before the date of the correction
under such minimization procedures as the Court
shall establish for purposes of this clause.''.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
SEC. 401. APPOINTMENT OF AMICUS CURIAE.
Section 103 (50 U.S.C. 1803) is amended by adding at the end the
following new subsection:
``(i) Amicus Curiae.--
``(1) Authorization.--A court established under subsection
(a) or (b), consistent with the requirement of subsection (c)
and any other statutory requirement that the court act
expeditiously or within a stated time--
``(A) shall appoint an individual to serve as amicus
curiae to assist such court in the consideration of any
application for an order or review that, in the opinion
of the court, presents a novel or significant
interpretation of the law, unless the court issues a
written finding that such appointment is not
appropriate; and
``(B) may appoint an individual to serve as amicus
curiae in any other instance as such court deems
appropriate.
``(2) Designation.--The presiding judges of the courts
established under subsections (a) and (b) shall jointly
designate not less than 5 individuals to be eligible to serve
as amicus curiae. Such individuals shall be persons who possess
expertise in privacy and civil liberties, intelligence
collection, telecommunications, or any other area of law that
may lend legal or technical expertise to the courts and who
have been determined by appropriate executive branch officials
to be eligible for access to classified information.
``(3) Duties.--An individual appointed to serve as amicus
curiae under paragraph (1) shall carry out the duties assigned
by the appointing court. Such court may authorize the
individual appointed to serve as amicus curiae to review any
application, certification, petition, motion, or other
submission that the court determines is relevant to the duties
assigned by the court.
``(4) Notification.--The presiding judges of the courts
established under subsections (a) and (b) shall notify the
Attorney General of each exercise of the authority to appoint
an individual to serve as amicus curiae under paragraph (1).
``(5) Assistance.--A court established under subsection (a)
or (b) may request and receive (including on a non-reimbursable
basis) the assistance of the executive branch in the
implementation of this subsection.
``(6) Administration.--A court established under subsection
(a) or (b) may provide for the designation, appointment,
removal, training, or other support for an individual appointed
to serve as amicus curiae under paragraph (1) in a manner that
is not inconsistent with this subsection.''.
SEC. 402. DECLASSIFICATION OF DECISIONS, ORDERS, AND OPINIONS.
(a) Declassification.--Title VI (50 U.S.C. 1871 et seq.) is amended--
(1) in the heading, by striking ``REPORTING REQUIREMENT'' and
inserting ``OVERSIGHT''; and
(2) by adding at the end the following new section:
``SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, AND
OPINIONS.
``(a) Declassification Required.--Subject to subsection (b), the
Attorney General shall conduct a declassification review of each
decision, order, or opinion issued by the Foreign Intelligence
Surveillance Court or the Foreign Intelligence Surveillance Court of
Review (as defined in section 601(e)) that includes a significant
construction or interpretation of any provision of this Act and,
consistent with that review, make publicly available to the greatest
extent practicable each such decision, order, or opinion.
``(b) Redacted Form.--The Attorney General may satisfy the
requirement under subsection (a) to make a decision, order, or opinion
described in such subsection publicly available to the greatest extent
practicable by making such decision, order, or opinion publicly
available in redacted form.
``(c) National Security Waiver.--The Attorney General may waive the
requirement to declassify and make publicly available a particular
decision, order, or opinion under subsection (a) if the Attorney
General--
``(1) determines that a waiver of such requirement is
necessary to protect the national security of the United States
or properly classified intelligence sources or methods; and
``(2) makes publicly available an unclassified summary of
such decision, order, or opinion.''.
(b) Table of Contents Amendments.--The table of contents in the first
section is amended--
(1) by striking the item relating to title VI and inserting
the following new item:
``TITLE VI--OVERSIGHT''; and
(2) by inserting after the item relating to section 601 the
following new item:
``Sec. 602. Declassification of significant decisions, orders, and
opinions.''.
TITLE V--NATIONAL SECURITY LETTER REFORM
SEC. 501. PROHIBITION ON BULK COLLECTION.
(a) Counterintelligence Access to Telephone Toll and Transactional
Records.--Section 2709(b) of title 18, United States Code, is amended
in the matter preceding paragraph (1) by striking ``may'' and inserting
``may, using a specific selection term as the basis for a request''.
(b) Access to Financial Records for Certain Intelligence and
Protective Purposes.--Section 1114(a)(2) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(2)) is amended by striking the
period and inserting ``and a specific selection term to be used as the
basis for the production and disclosure of financial records.''.
(c) Disclosures to FBI of Certain Consumer Records for
Counterintelligence Purposes.--Section 626(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681u(a)) is amended by striking ``that
information,'' and inserting ``that information that includes a
specific selection term to be used as the basis for the production of
that information,''.
(d) Disclosures to Governmental Agencies for Counterterrorism
Purposes of Consumer Reports.--Section 627(a) of the Fair Credit
Reporting Act (15 U.S.C. 1681v(a)) is amended by striking ``analysis.''
and inserting ``analysis and a specific selection term to be used as
the basis for the production of such information.''.
(e) Definitions.--
(1) Counterintelligence access to telephone toll and
transactional records.--Section 2709 of title 18, United States
Code, is amended by adding at the end the following new
subsection:
``(g) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
(2) Access to financial records for certain intelligence and
protective purposes.--Section 1114 of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414) is amended by adding at
the end the following new subsection:
``(e) In this section, the term `specific selection term' has the
meaning given the term in section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861).''.
(3) Disclosures to fbi of certain consumer records for
counterintelligence purposes.--Section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u) is amended by adding at the end
the following new subsection:
``(n) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
(4) Disclosures to governmental agencies for counterterrorism
purposes of consumer reports.--Section 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681v) is amended by adding at the end
the following new subsection:
``(g) Specific Selection Term Defined.--In this section, the term
`specific selection term' has the meaning given the term in section 501
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861).''.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
SEC. 601. ADDITIONAL REPORTING ON ORDERS REQUIRING PRODUCTION OF
BUSINESS RECORDS.
Section 502(b) (50 U.S.C. 1862(b)) is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
paragraphs (5), (6), and (7), respectively; and
(2) by inserting before paragraph (5) (as so redesignated)
the following new paragraphs:
``(1) the total number of applications described in section
501(b)(2)(B) made for orders approving requests for the
production of tangible things;
``(2) the total number of such orders either granted,
modified, or denied;
``(3) the total number of applications described in section
501(b)(2)(C) made for orders approving requests for the
production of call detail records;
``(4) the total number of such orders either granted,
modified, or denied;''.
SEC. 602. BUSINESS RECORDS COMPLIANCE REPORTS TO CONGRESS.
(a) Business Records Productions.--Section 502(b) (50 U.S.C.
1862(b)), as amended by section 601 of this Act, is further amended--
(1) by redesignating paragraphs (1) through (7) as paragraphs
(2) through (8), respectively; and
(2) by inserting before paragraph (2) (as so redesignated)
the following new paragraph:
``(1) any compliance reviews conducted by the Federal
Government of the production of tangible things under section
501;''.
(b) FISA Authorities in General.--Section 601(a) (50 U.S.C. 1871(a))
is amended--
(1) in paragraph (4), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (5), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new paragraph:
``(6) any compliance reviews conducted by the Federal
Government of electronic surveillance, physical searches, the
installation of pen register or trap and trace devices, access
to records, or acquisitions conducted under this Act.''.
SEC. 603. ANNUAL REPORT BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS ON ORDERS ENTERED.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as amended by
section 402 of this Act, is further amended by adding at the end the
following new section:
``SEC. 603. ANNUAL REPORT ON ORDERS ENTERED.
``The Director of the Administrative Office of the United States
Courts shall annually submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House of
Representatives and the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate and make publicly available on
an Internet website--
``(1) the number of orders entered under each of sections
105, 304, 402, 501, 702, 703, and 704;
``(2) the number of orders modified under each of those
sections;
``(3) the number of orders denied under each of those
sections; and
``(4) the number of appointments of an individual to serve as
amicus curiae under section 103, including the name of each
individual appointed to serve as amicus curiae.''.
(b) Table of Contents Amendment.--The table of contents in the first
section, as amended by section 402 of this Act, is further amended by
inserting after the item relating to section 602, as added by such
section 402, the following new item:
``Sec. 603. Annual report on orders entered.''.
SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO FISA ORDERS.
(a) In General.--Title VI (50 U.S.C. 1871 et seq.), as amended by
section 603 of this Act, is further amended by adding at the end the
following new section:
``SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
``(a) Reporting.--A person may semiannually publicly report the
following information with respect to the preceding half year using one
of the following structures:
``(1) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The number of national security letters
received, reported in bands of 1000 starting with 0-
999.
``(C) The number of customer accounts affected by
national security letters, reported in bands of 1000
starting with 0-999.
``(D) The number of orders under this Act for
content, reported in bands of 1000 starting with 0-999.
``(E) With respect to content orders under this Act,
in bands of 1000 starting with 0-999--
``(i) the number of customer accounts
affected under orders under title I; and
``(ii) the number of customer selectors
targeted under orders under title VII.
``(F) The number of orders under this Act for non-
content, reported in bands of 1000 starting with 0-999.
``(G) With respect to non-content orders under this
Act, in bands of 1000 starting with 0-999--
``(i) the number of customer accounts
affected under orders under--
``(I) title I;
``(II) title IV;
``(III) title V with respect to
applications described in section
501(b)(2)(B); and
``(IV) title V with respect to
applications described in section
501(b)(2)(C); and
``(ii) the number of customer selectors
targeted under orders under title VII.
``(2) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The total number of all national security
process received, including all national security
letters and orders under this Act, reported as a single
number in a band of 0-249 and thereafter in bands of
250.
``(C) The total number of customer selectors targeted
under all national security process received, including
all national security letters and orders under this
Act, reported as a single number in a band of 0-249 and
thereafter in bands of 250.
``(3) A report that aggregates the number of orders or
directives the person was required to comply with in the
following separate categories:
``(A) Criminal process, subject to no restrictions.
``(B) The number of national security letters
received, reported in bands of 500 starting with 0-499.
``(C) The number of customer accounts affected by
national security letters, reported in bands of 500
starting with 0-499.
``(D) The number of orders under this Act for
content, reported in bands of 500 starting with 0-499.
``(E) The number of customer selectors targeted under
such orders, in bands of 500 starting with 0-499.
``(F) The number of orders under this Act for non-
content, reported in bands of 500 starting with 0-499.
``(G) The number of customer selectors targeted under
such orders, reported in bands of 500 starting with 0-
499.
``(b) National Security Letter Defined.--The term `national security
letter' means any of the following provisions:
``(1) Section 2709 of title 18, United States Code.
``(2) Section 1114(a)(5)(A) of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3414(a)(5)(A)).
``(3) Subsection (a) or (b) of section 626 of the Fair Credit
Reporting Act (15 U.S.C. 1681u(a), 1681u(b)).
``(4) Section 627(a) of the Fair Credit Reporting Act (15
U.S.C. 1681v(a)).''.
(b) Table of Contents Amendment.--The table of contents in the first
section, as amended by section 603 of this Act, is further amended by
inserting after the item relating to section 603, as added by section
603 of this Act, the following new item:
``Sec. 604. Public reporting by persons subject to orders.''.
SEC. 605. REPORTING REQUIREMENTS FOR DECISIONS OF THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT.
Section 601(c)(1) (50 U.S.C. 1871(c)) is amended to read as follows:
``(1) not later than 45 days after the date on which the
Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review issues a decision,
order, or opinion that includes a significant construction or
interpretation of any provision of this Act or a denial of a
request for an order or a modification of a request for an
order, or results in a change of application of any provision
of this Act or a new application of any provision of this Act--
``(A) a copy of such decision, order, or opinion and
any pleadings, applications, or memoranda of law
associated with such decision, order, or opinion; and
``(B) with respect to such decision, order, or
opinion, a brief statement of the relevant background
factual information, questions of law, legal analysis,
and decision rendered; and''.
SEC. 606. SUBMISSION OF REPORTS UNDER FISA.
(a) Electronic Surveillance.--Section 108(a)(1) (50 U.S.C.
1808(a)(1)) is amended by striking ``the House Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence, and the Committee on the Judiciary of the Senate,'' and
inserting ``the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the Judiciary of
the Senate''.
(b) Physical Searches.--Section 306 (50 U.S.C. 1826) is amended--
(1) in the first sentence, by striking ``Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate, and the
Committee on the Judiciary of the Senate,'' and inserting
``Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate''; and
(2) in the second sentence, by striking ``and the Committee
on the Judiciary of the House of Representatives''.
(c) Pen Register and Trap and Trace Devices.--Section 406(b) (50
U.S.C. 1846(b)) is amended--
(1) in paragraph (2), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (3), by striking the period and inserting a
semicolon; and
(3) by adding at the end the following new paragraphs:
``(4) each department or agency on behalf of which the
Government has made application for orders approving the use of
pen registers or trap and trace devices under this title; and
``(5) for each department or agency described in paragraph
(4), a breakdown of the numbers required by paragraphs (1),
(2), and (3).''.
(d) Access to Certain Business Records and Other Tangible Things.--
Section 502(a) (50 U.S.C. 1862(a)) is amended by striking ``Permanent
Select Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence and the Committee on the Judiciary
of the Senate'' and inserting ``Permanent Select Committee on
Intelligence of the House of Representatives, the Select Committee on
Intelligence of the Senate, and the Committees on the Judiciary of the
House of Representatives and the Senate''.
TITLE VII--SUNSETS
SEC. 701. SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of 2005.--Section
102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of
2005 (50 U.S.C. 1805 note) is amended by striking ``June 1, 2015'' and
inserting ``December 31, 2017''.
(b) Intelligence Reform and Terrorism Prevention Act of 2004.--
Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (50 U.S.C. 1801 note) is amended by striking ``June 1,
2015'' and inserting ``December 31, 2017''.
Purpose and Summary
H.R. 3361, the ``USA FREEDOM Act,'' reforms Section 215 of
the USA PATRIOT Act (Section 501 of the Foreign Intelligence
Surveillance Act (FISA)), clarifies several other national
security authorities, expands existing oversight provisions,
and creates greater transparency of national security programs
operated pursuant to FISA.
Background and Need for the Legislation
In June 2013, Edward Snowden, a former defense contractor
and CIA employee, released classified material on top-secret
National Security Agency (NSA) data collection programs,
including a metadata program operated under Section 215 of the
USA PATRIOT Act and a program called PRISM operated under
Section 702 of the FISA Amendments Act, to the media. On June
5, 2013, it was reported that on April 25, 2013, the Foreign
Intelligence Surveillance Court (FISC) granted an order
requested by the FBI pursuant to Section 215 of the USA PATRIOT
Act.\1\ The order compels a telephone service provider, on an
``ongoing, daily basis,'' to provide the NSA with ``all call
detail records or telephony metadata'' for communications made
via its systems, both within the United States and between the
U.S. and other countries.\2\ ``Telephony metadata'' is broadly
defined, and includes the numbers of both parties on a call,
unique identifiers, and the time and duration of all calls. The
order gave the government the authority to obtain the call
detail records or ``telephony metadata'' for a 3-month period,
ending on July 19, 2013.\3\
---------------------------------------------------------------------------
\1\50 U.S.C. Sec. 1861.
\2\See Verizon forced to hand over telephone data--full court
ruling, the Guardian, Jun. 5, 2013, available at http://
www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-
data-court-order.
\3\Id.
---------------------------------------------------------------------------
On June 6, 2013, classified information regarding a second
program, the PRISM program, was reported by the Guardian and
Washington Post.\4\ PRISM was authorized by Section 702 of
FISA,\5\ which was reauthorized by Congress in 2012 and expires
in December of 2017.\6\ It allows the NSA to obtain data from
electronic service providers regarding non-U.S. persons who
reside outside the United States--including email, chat,
photos, videos, stored data, and file transfers.
---------------------------------------------------------------------------
\4\Glenn Greenwald, ``NSA Prism program taps in to user data of
Apple, Google and others,'' available at http://www.guardian.co.uk/
world/2013/jun/06/us-tech-giants-nsa-data.
\5\50 U.S.C. Sec. 1881a.
\6\Id.; see also Pub. L. No. 112-238 (December 30, 2012).
---------------------------------------------------------------------------
In the months that followed, the Director of National
Intelligence (DNI) declassified numerous Foreign Intelligence
Surveillance Court (FISC) opinions and orders. In addition, the
DNI declassified minimization procedures and comprehensive
reviews of programs operated under FISA.
On March 27, 2014, President Obama announced several
changes to the conduct of foreign intelligence activities in
response to the ongoing controversy arising from the
unauthorized disclosure of classified information by Edward
Snowden. The President announced changes that imposed both a
substantive limit on the scope of NSA's access to telephony
metadata as well as a procedural limit on when the NSA may
access the data in the first place. The substantive limit
restricts the results of queries of telephony metadata to two
``hops'' (a ``hop'' is a colloquial term for a connection
between two telephone numbers). Prior to the President's
speech, the program had been authorized to receive query
results of up to three ``hops.''
The procedural limit also requires that the FISC approve
queries of telephony metadata on a case-by-case basis and
before any query is conducted. Under the bulk metadata
collection program, the NSA was permitted to query the data
without court approval and based on one of 22 NSA officials'
determination that there was a reasonable articulable suspicion
(RAS) that the selector is associated with an international
terrorist organization. As described by the President, the new
framework requires the FISC to approve each selector for use in
queries. Such an arrangement was not unprecedented. For several
months in 2009, the FISC had imposed a similar judicial pre-
approval requirement after the government reported violations
of the court-ordered privacy protections intended to prevent
access to the metadata. This pre-approval requirement was
subsequently lifted after the FISC was satisfied that
sufficient changes had been made to correct the earlier
compliance violations.
At the same time, the President announced that the
government should no longer store telephone metadata in bulk;
rather, the records should remain at the telephone companies
for the length of time such records are stored in the ordinary
course of business. Also, the President stated that the court-
approved numbers could be used to query the data over a limited
period of time without returning to the FISC for approval, the
production of records would be ongoing and prospective, and the
companies should be compelled by court order to provide
technical assistance to ensure that the records can be queried
and that results are transmitted to the government in a usable
format and in a timely manner. \7\
---------------------------------------------------------------------------
\7\Press Release, The White House, Office of the Press Secretary,
Statement by the President on the Section 215 Bulk Metadata Program
(Mar. 27, 204), available at http://www.whitehouse.gov/the-press-
office/2014/03/27/statement-president-section-215-bulk-metadata-
program.
---------------------------------------------------------------------------
Over the past year, the House Judiciary Committee has
conducted aggressive oversight of these programs. In July 2013,
the Committee held a public hearing at which testimony was
received from officials with the Justice Department, the Office
of the Director of National Intelligence, the NSA and the FBI
and civil liberties groups. In September 2013, the Committee
held a classified hearing where members were afforded the
opportunity to further probe these programs with officials from
DOJ, ODNI, NSA, and FBI. In February 2014, the Committee held a
comprehensive hearing to examine the various recommendations to
reform these programs offered by the President's Review Group
on Intelligence and Communications Technologies and the Privacy
and Civil Liberties Oversight Board.
In 1976, the Supreme Court held that an individual's bank
account records did not fall within the protection of the
Fourth Amendment's prohibition on unreasonable searches and
seizures.\8\ Subsequently, Congress passed laws protecting
various types of transactional information, but built in
exceptions providing some access to statutorily protected
records for counter intelligence purposes. Similar statutory
protections were also enacted for electronic communications
records and credit bureau records.
---------------------------------------------------------------------------
\8\U.S. v. Miller, 425 U.S. 435 (1976).
---------------------------------------------------------------------------
As with financial records, these later statutes also
included exceptions for access to records relevant to
counterintelligence investigations. These exceptions comprise
the authority for national security letters (NSLs), which can
be used to compel the production of certain types of records.
In 1998, Congress amended FISA to provide access to certain
records that were not available through NSLs.\9\ Specifically,
it created a mechanism for Federal investigators to compel the
production of records from common carriers, public
accommodation facilities, storage facilities, and vehicle
rental facilities.\10\ Applications for orders under this
section had to be made by FBI agents with a rank of Assistant
Special Agent in Charge or higher and investigations could not
be conducted solely on the basis of activities protected by the
First Amendment.\11\
---------------------------------------------------------------------------
\9\P.L. 105-272, tit. VI, Sec. 602.
\10\50 U.S.C. Sec. 1862(a) (2001).
\11\50 U.S.C. Sec. 1862(a)(1) (2001).
---------------------------------------------------------------------------
Under these procedures the FISC would issue an order if the
application contained ``specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power.''\12\
Recipients of an order under this section were required to
comply with it, and were also prohibited from disclosing to
others that an order had been issued.\13\
---------------------------------------------------------------------------
\12\50 U.S.C. Sec. 1862(b)(2)(B) (2001).
\13\50 U.S.C. Sec. 1862(d)(1)-(2) (2001).
---------------------------------------------------------------------------
In 2001, Section 215 of the USA PATRIOT Act made several
changes to the procedures under FISA for obtaining business
records.\14\ Among these was an expansion of the scope of
records that were subject to compulsory production. Prior to
enactment of the USA PATRIOT Act, only records from four
explicit categories of businesses could be obtained. Section
215 expanded business records to ``any tangible things.''\15\
---------------------------------------------------------------------------
\14\P.L. 107-56, Sec. 215 codified at 50 U.S.C. Sec. 1862(a)-(b)
(2008).
\15\50 U.S.C. Sec. 1861(a)(1) (2008).
---------------------------------------------------------------------------
This expanded scope drew strong opposition from the library
community, so much so that Section 215 came to be known as the
``library provision'' despite the fact that the original text
of the provision did not mention libraries. Opposition from
this group was based upon the ``chilling effect'' such access
might have on the exercise of First Amendment rights and
purported intrusions into areas protected by the Fourth
Amendment.\16\
---------------------------------------------------------------------------
\16\See, e.g., AMERICAN LIBRARY ASSOCIATION, Resolution on the USA
PATRIOT Act and Related Measures That Infringe on the Rights of Library
Users, Jan. 29, 2003, available at http://www.ala.org.
---------------------------------------------------------------------------
In response to these concerns, a library-specific amendment
was made to the Section 215 procedures by the USA PATRIOT
Improvement and Reauthorization Act of 2005. Under this
amendment, if the records sought were ``library circulation
records, library patron lists, book sales records, book
customer lists, firearms sales records, tax return records,
educational records, or medical records containing information
that would identify a person,'' the application has to be
approved by one of three high-ranking FBI officers.\17\
---------------------------------------------------------------------------
\17\Applications for these records could be made only by the
Director of the Federal Bureau of Investigation, the Deputy Director of
the Federal Bureau of Investigation, or the Executive Assistant
Director for National Security. This authority cannot be further
delegated. 50 U.S.C. Sec. 1861(a)(3) (2008).
---------------------------------------------------------------------------
Section 215 of the USA PATRIOT Act also modified the
standard that had to be met before an order compelling
production of documents could issue from the FISC. Prior to
enactment of Section 215, an applicant had to have ``specific
and articulable facts giving reason to believe that the person
to whom the records pertain is a foreign power or an agent of a
foreign power.''\18\ In contrast, under Section 215, the
applicant only needed to ``specify that the records concerned
[were] sought for a [foreign intelligence investigation.]''\19\
---------------------------------------------------------------------------
\18\50 U.S.C. Sec. 1862(b)(2)(B) (2001).
\19\P.L. 107-56, Sec. 215.
---------------------------------------------------------------------------
As part of the 2005 reauthorization, Congress further
amended FISA procedures for obtaining business records. The
applicable standard was again changed to require ``a statement
of facts showing that there are reasonable grounds to believe
that the tangible things sought are relevant to a [foreign
intelligence investigation.]''\20\ Records are presumptively
relevant if they pertain to:
---------------------------------------------------------------------------
\20\P.L. 109-177, Sec. 106(b).
---------------------------------------------------------------------------
La foreign power or an agent of a foreign power;
Lthe activities of a suspected agent of a foreign
power who is the subject of such authorized investigation; or
Lan individual in contact with, or known to, a
suspected agent of a foreign power who is the subject of such
authorized investigation;
Orders issued under Section 215 are accompanied by
nondisclosure orders prohibiting the recipients from disclosing
that the FBI has sought or obtained any tangible things
pursuant to a FISA order. However, the recipient may discuss
the order with other persons as necessary to comply with the
order, with an attorney to obtain legal advice or assistance,
or with other persons as permitted by the FBI.\21\ The
recipient must identify persons to whom disclosure has been
made, or is intended to be made, if the FBI requests, except
that attorneys with whom the recipient has consulted do not
need to be identified.\22\
---------------------------------------------------------------------------
\21\50 U.S.C. Sec. 1861(d)(1) (2008).
\22\50 U.S.C. Sec. 1861(d)(2)(C) (2008).
---------------------------------------------------------------------------
The 2005 reauthorization also provided procedures for
recipients of Section 215 orders to challenge the judicial
review of orders compelling the production of business
records.\23\ Once a petition for review is submitted by a
recipient, a FISC judge must determine whether the petition is
frivolous within 72 hours.\24\ If the petition is frivolous, it
must be denied and the order affirmed.\25\ Otherwise the order
may be modified or set aside if it does not meet the
requirements of FISA or is otherwise unlawful.\26\ Appeals by
either party may be heard by the Foreign Intelligence Court of
Review and the Supreme Court.\27\
---------------------------------------------------------------------------
\23\50 U.S.C. Sec. 1861(f)(2)(A)(i) (2008).
\24\50 U.S.C. Sec. 1861(f)(2)(A)(ii) (2008).
\25\Id.
\26\50 U.S.C. Sec. 1861(f)(2)(B) (2008).
\27\50 U.S.C. Sec. 1861(f)(3) (2008).
---------------------------------------------------------------------------
On July 10, 2008, President Bush signed into law the FISA
Amendments Act of 2008 (FAA), which passed with a bipartisan
majority of Congress and broad support from the intelligence
community. Among other things, the FAA provided for targeting
non-U.S. persons overseas to acquire foreign intelligence
information, subject to specific targeting and minimization
procedures that are reviewed by the FISA Court. The FAA
required the Attorney General and the DNI to assess compliance
with those procedures every 6 months and to submit an
assessment to the FISA Court and to Congress.
The FAA permited the Attorney General and DNI to obtain an
annual certification from the FISC to target foreign persons
reasonably believed to be located outside the U.S. to acquire
foreign intelligence information. Under exigent
circumstances,\28\ the Attorney General and DNI may immediately
authorize such targeting based upon a determination that
without immediate implementation of an authorization,
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order.
---------------------------------------------------------------------------
\28\The use of the term ``exigent circumstances'' in this provision
is not intended to implicate in any way the use of that term in
criminal procedure jurisprudence as an exception to the Fourth
Amendment warrant requirement. See, e.g., U.S. v. Karo, 468 U.S. 705
(1984); Warden v. Hayden, 387 U.S. 294 (1967); McDonald v. U.S., 335
U.S. 451 (1948). Rather, section 702 defines its use of the term
``exigent circumstances'' for purposes of targeting a foreign person
reasonably believed to be located outside the United States as those
circumstances that will result in the loss or failure to timely acquire
intelligence important to the national security of the United States
and time does not permit the issuance of an authorization under this
section.
---------------------------------------------------------------------------
The FAA strengthened protections for U.S. citizens by
requiring the government to obtain an order from the FISC to
target them outside the United States to acquire foreign
intelligence information. Prior to 2008, targeting of U.S.
persons outside the U.S. was governed by Executive Order 12333,
which allowed the Attorney General to certify the targeting of
U.S. persons overseas.
The FAA expanded oversight by all three branches of
government:
LEvery 60 days, the Department of Justice and the
Office of the Director of National Intelligence conduct on-site
reviews of surveillance conducted pursuant to the FISA
Amendments Act.
LThe Attorney General and the DNI conduct detailed
assessments of compliance with court-approved targeting and
minimization procedures and provide these assessments to
Congress twice a year.
LA semi-annual report to Congress is required from
the Administration on certifications or orders obtained under
the FAA, compliance reviews, and incidents of noncompliance.
The FAA amended an existing reporting requirement to
require the Attorney General to submit to Congress a copy of
any FISC order, opinion, or decision, and the accompanying
pleadings, briefs, and other memoranda of law when the court's
decision includes ``significant construction or interpretation
of any provision'' of FISA. This expanded the amount of
background and supporting material that the Committee could
receive in connection with a significant decision by the FISC.
Prior to enactment of the FISA Amendments Act in 2008, only
``decisions and opinions'' containing significant construction
or interpretation of FISA were required to be submitted to
Congress.
Hearings
The Committee on the Judiciary held no hearings on H.R.
3361.
Committee Consideration
On May 7, 2014, the Committee met in open session and
ordered the bill H.R. 3361 favorably reported with an
amendment, by a rollcall vote of 32 to 0, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3361:
1. An amendment by Mr. King to permit the government to
contract with third parties for the retention of information.
Defeated by a rollcall vote of 4 to 24.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
[Vacant].......................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 4 24
------------------------------------------------------------------------
2. An amendment offered by Mr. Gohmert to amend Sections
501 and 402 of title 50 and Section 2709 of title 18 to change
``clandestine intelligence activities'' to `clandestine
intelligence activities by foreign individuals, foreign
entities or foreign governments.'' Passed by a rollcall vote of
14 to 11. After the adoption of the Gohmert amendment, a motion
to reconsider the vote on the amendment was agreed to, and the
amendment was then defeated by voice vote.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Smith (MO)................................. X
[Vacant].......................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 14 11
------------------------------------------------------------------------
3. Motion to report H.R. 3361 favorably, as amended. Passed
by a vote of 32 to 0.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
[Vacant].......................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 32 0
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that 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, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3361, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 14, 2014.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3361, the ``USA
FREEDOM Act.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock, who can be reached at 226-2840.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3361--USA FREEDOM Act.
As ordered reported by the House Committee on the Judiciary
on May 7, 2014.
H.R. 3361 would make several amendments to investigative
and surveillance authorities of the United States government,
and would specify the conditions under which the Federal
Government may conduct certain types of surveillance. CBO does
not provide estimates for classified programs; therefore, this
estimate addresses only the unclassified aspects of the bill.
On that limited basis, CBO estimates implementing H.R. 3361
would cost approximately $15 million over the 2015-2019 period,
subject to the appropriation of the necessary amounts.
Enacting H.R. 3361 also could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. The bill
could potentially result in additional criminal penalties
because it would extend for 2 years the authority of the
government to conduct surveillance in certain instances. Such
penalties are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. However, CBO anticipates that
any amounts collected would be minimal and the net impact would
be insignificant.
EFFECTS ON THE FEDERAL BUDGET
The bill would amend the Foreign Intelligence Surveillance
Act (FISA). Those amendments would affect the operations of the
Foreign Intelligence Surveillance Court (FISC) and the
Judiciary. First, H.R. 3361 would permit the FISC to appoint an
amicus curiae, or ``friend of the court,'' to assist the court
when the government makes an application under FISA that
presents a novel or significant interpretation of FISA. Second,
the bill would limit collection of telephone call records,
thereby requiring the intelligence agencies--acting through the
Department of Justice--to seek additional warrants from the
FISC to access such data. Finally, the bill would require an
annual report by the Director of the Administrative Office of
the U.S. Courts (AOUSC), providing data on certain types of
FISA orders. Based on information from the AOUSC, CBO estimates
that implementing those requirements would cost approximately
$5 million over the 2015-2019 period, assuming appropriation of
the necessary amounts.
In addition, the bill would require Federal agencies to
conduct several program assessments and reviews, and would
establish new reporting requirements. Section 108 would require
the Inspectors General of the Justice Department and the
Intelligence Community to assess the effectiveness of the
surveillance programs affected by the bill; section 402 would
require the Attorney General to conduct declassification
reviews of certain court decisions, orders, and opinions
related to FISA. CBO estimates that fulfilling these and other
reporting requirements in the bill would cost approximately $10
million over the 2015-2019 period, assuming appropriation of
the necessary amounts.
INTERGOVERNMENTAL AND PRIVATE-SECTOR MANDATES
The bill would impose two mandates, as defined in the
Unfunded Mandates Reform Act (UMRA), on both private and
governmental entities. First, the bill would expand liability
protections and limit the ability of plaintiffs to sue in cases
where a defendant provides information to the Federal
Government pursuant to a FISA order. Second, it would require
entities, when compelled to provide information about telephone
calls to Federal officials, to protect the secrecy of the
records and to minimize any disruption of services.
CBO estimates that the costs of those mandates would be
small. The change in expanded liability protection is a slight
modification to current law, and CBO estimates that the
elimination of any legal right of action for future plaintiffs
would affect a limited number of potential lawsuits.
Information from the Department of Justice indicates that
public entities receive few requests for call records, and the
cost to those entities of providing that information is
negligible. In addition, since public and private entities
already take action to protect private information in complying
with requests from the Federal Government and such entities
would be fully compensated by the government at the prevailing
rate for the services they provide, the costs to those entities
would be insignificant. Consequently, CBO estimates that the
total costs of all mandates in the bill would fall well below
the intergovernmental and private-sector thresholds established
in UMRA ($76 million and $152 million in 2014, respectively,
adjusted annually for inflation).
PREVIOUS CBO ESTIMATE
On May 8, 2014, the House Permanent Select Committee on
Intelligence ordered reported a similar version of H.R. 3361.
CBO's cost estimates for both versions are the same.
STAFF CONTACTS
The CBO staff contacts for this estimate are Jason Wheelock
(for Federal costs), J'nell L. Blanco (for the
intergovernmental effects), and Elizabeth Bass (for the
private-sector effects). This estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 3361 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
No provision of H.R. 3361 directs a specific rule making
within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3361, the USA FREEDOM Act, reforms Section 215 of the USA
PATRIOT Act (Section 501 of FISA), clarifies several other
national security authorities, expands existing oversight
provisions, and creates greater transparency of national
security programs operated pursuant to FISA.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3361 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
TITLE I--FISA BUSINESS RECORD REFORMS
Sec. 101--Additional requirements for call detail records.
On March 27, 2014, President Obama announced the need for
legislation to reform the NSA's telephone metadata program.\29\
To that end, the Act preserves traditional operational
capabilities exercised by the government to collect foreign
intelligence information under Section 501 of FISA. In
addition, the Act prohibits the bulk collection of any business
records under Section 501. The Act also creates a new,
narrowly-tailored mechanism that prevents bulk collection of
telephone metadata by the government but also preserves the
government's ability to search telephone metadata for possible
connections between foreign powers or agents of foreign powers
and others, as part of an authorized investigation to protect
against international terrorism and with the additional
safeguards proposed by the President.
---------------------------------------------------------------------------
\29\Press Release, The White House, Office of the Press Secretary,
Statement by the President on the Section 215 Bulk Metadata Program
(Mar. 27, 204), available at http://www.whitehouse.gov/the-press-
office/2014/03/27/statement-president-section-215-bulk-metadata-
program.
---------------------------------------------------------------------------
Under the Act, if the government can demonstrate a
reasonable, articulable suspicion that a specific selection
term is associated with a foreign power or an agent of a
foreign power, the FISA court may issue an order for the
production of call detail records created on or after the
request for production and held by telephone companies in the
normal course of business. The government may require the
production of up to two ``hops''--i.e., the call detail records
associated with the initial seed and the call detail records
associated with the records returned in the initial ``hop.''
The prospective collection of call detail records (i.e., those
created ``after'' the request for production) is limited to 180
days.
The Act defines ``call detail record'' to include ``session
identifying information (including originating or terminating
telephone number, International Mobile Subscriber Identity
number, or International Mobile Station Equipment Identity
number), a telephone calling card number, or the time or
duration of a call.'' The Act explicitly excludes from that
term the contents of any communication; the name, address, or
financial information of a subscriber or customer; and cell
site location information.
The Act requires the entities involved in the production of
call detail records to provide the government with technical
assistance. The Act also requires the destruction of call
detail records within 5 years of production, except for records
that remain relevant to an ongoing counterterrorism
investigation.
The Act does not require any private entity to retain any
record or information other than in the ordinary course of
business. However, nothing in current law or this Act prohibits
the government and telecommunications providers from agreeing
voluntarily to retain records for periods longer than required
for their business purposes.
This new authority--designed to allow the government to
search telephone metadata for possible connections to
international terrorism--does not preclude the government's use
of ``traditional'' business record orders under Section 501 to
compel the production of business records, including call
detail records.
Sec. 102--Emergency authority. This section creates a new
emergency authority in Section 215. The Attorney General may
authorize the emergency production of tangible things, provided
that such an application is presented to the court within 7
days. If the court subsequently denies an emergency
application, the government may not use any of the information
obtained under the emergency authority except in instances of a
threat of death or serious bodily harm.
Sec. 103. Prohibition on Bulk Collection of Tangible
Things. The Act requires that each application for the
production of tangible things include ``a specific selection
term to be used as the basis for the production.'' In so doing,
the Act makes clear that the government may not engage in bulk
collection under Section 501 of FISA.
The Act defines ``specific selection term'' to mean ``a
term used to uniquely describe a person, entity, or account.''
This goes further than the President's plan in that it
prohibits the bulk collection of all tangible things and not
just telephone records. Section 501(b)(2)(A) of FISA will
continue to require the government to make ``a statement of
facts showing that there are reasonable grounds to believe that
the tangible things sought are relevant to an authorized
investigation. . . .''\30\ The USA Freedom Act requires the
government to provide a specific selection term as the basis
for the production of the tangible things sought, thus ensuring
that the government cannot collect tangible things based on the
assertion that the requested collection ``is thus relevant,
because the success of [an] investigative tool depends on bulk
collection.''\31\ These changes restore meaningful limits to
the ``relevance'' requirement of Section 501.
---------------------------------------------------------------------------
\30\50 U.S.C. Sec. 501(b)(2)(A).
\31\Amended Memorandum Opinion, In re Application of the Federal
Bureau of Investigation for an Order Requiring the Production of
Tangible Things From [redacted], No. BR 13-09 (FISA Ct. Aug. 29, 2013),
at 21 (citing Mem. of Law at 15, Docket No. BR 06-05).
---------------------------------------------------------------------------
Although this Act eliminates bulk collection, the Act does
not limit the government's use of Section 501 as it was
designed, as a mechanism for intelligence agencies to obtain
information, based on a statement of facts showing that there
are reasonable grounds to believe that the tangible things
sought are relevant to a national security investigation.
Sec. 104--Judicial review of minimization procedures for
the production of tangible things. This section provides that
the court may evaluate the adequacy of minimization procedures
under Section 215. Under current law, the court is only
empowered to determine whether or not the government has
minimization procedures in place.
Sec. 105--Liability protection. This section provides
liability protections to third parties who provide information,
facilities, or technical assistance to the government in
compliance with an order issued under Section 215. This
provision mirrors the liability provisions in Titles I and VII
of FISA.
Sec. 106--Compensation for assistance. This section
explicitly permits the government to compensate third parties
for producing tangible things or providing information,
facilities, or assistance in accordance with an order issue
under Section 215. It is customary for the Government to enter
into contractual agreements with third parties in order to
compensate them for products and services provided to the
Government.
Sec. 107--Definitions. This section provides definitions
for ``call detail records'' and ``specific selection term''.
Sec. 108--Inspector general reports on business records
orders. This section requires the Inspector General of the
Department of Justice to conduct a comprehensive review of the
use of Section 215 with respect to calendar years 2012 to 2014.
It also requires the Inspector General of the Intelligence
Community to assess the value and use of intelligence obtained
under Section 215 over the same period.
Sec. 109--Effective date. This section provides that the
new telephone metadata program, the new Section 215 emergency
authority, and the prohibition on bulk collection of tangible
things under Section 215 take effect 180 days after enactment.
TITLE II--FISA PEN REGISTER AND TRAP AND TRACE DEVICE REFORM
Sec. 201--Prohibition on bulk collection. This section
provides that the pen register and trap and trace device
authority may not be used without a specific selection term as
the basis for selecting the telephone line or other facility to
which the pen register or trap and trace device is to be
attached or applied.
Sec. 202--Minimization procedures. This section requires
that the government adopt procedures that are reasonably
designed to minimize the retention and prohibit the
dissemination of nonpublic information about United States
persons. It also explicitly authorizes the court to assess
compliance with these procedures while a pen register or trap
and trace device is in use.
TITLE III--FISA ACQUISITIONS TARGETING PERSONS OUTSIDE THE UNITED
STATES REFORMS
Sec. 301. Restatement of Prohibition on Reverse Targeting.
Section 702(b)(2) of FISA provides that the government ``may
not intentionally target a person reasonably believed to be
located outside the United States if the purpose of such
acquisition is to target a particular, known person reasonably
believed to be within the United States.''\32\ The Act
clarifies this prohibition to state that the government ``may
not intentionally target a person reasonably believed to be
located outside the United States if a purpose of such
acquisition is to target a particular, known person reasonably
believed to be within the United States.''
---------------------------------------------------------------------------
\32\50 U.S.C. Sec. 1881a(b)(2) (emphasis ours).
---------------------------------------------------------------------------
This change is meant to simply clarify and restate
Congress' original intent in enacting Section 702 of the FISA
Amendments Act that this authority cannot be used as a pretext
to target U.S. persons inside the United States.
Sec. 302. Minimization Procedures. The Act codifies
procedures already adopted by the government for the
minimization of domestic communications. Specifically, the Act
requires that the government minimize the acquisition, and
prohibit the retention and dissemination, of any wholly
domestic communication acquired by the government under Section
702. The Act also prohibits the government from using
communications to or from a United States person or a person
who appears to be located in the United States, except where
the communication relates to a target under Section 702 or to
protect against an immediate threat to human life.
Sec. 303--Limits on use of unlawfully obtained information.
This section provides that the government may not use
information acquired outside the scope of court-approved
targeting and minimization procedures.
TITLE IV--FOREIGN INTELLIGENCE SURVEILLANCE COURT REFORMS
Sec. 401--Appointment of amicus curiae. This section
provides that both the FISA court and the FISA Court of Review
shall, if deemed appropriate, appoint an individual to serve as
amicus curiae in a case involving a novel or significant
interpretation of law. In addition, this section permits the
court to appoint amicus curiae in any case.
The presiding judges of the courts will designate five
individuals who are eligible to serve as amicus curiae. These
individuals shall possess expertise in privacy and civil
liberties, intelligence collection, telecommunications, or any
other area of law that may lend legal or technical expertise to
the courts, and shall possess appropriate security clearances.
Sec. 402--Declassification of decisions, orders, and
opinions. This section requires the Attorney General to conduct
a declassification review of each decision, order, or opinion
of the FISA court that includes a significant construction or
interpretation of law. In the interest of national security,
the Attorney General may provide a summary of the decision
rather than a declassified copy.
TITLE V--NATIONAL SECURITY LETTER REFORM
Sec. 501--Prohibition on bulk collection. This section
prohibits the use of various national security letter
authorities without the use of a specific selection term as the
basis for the national security letter request.
TITLE VI--FISA TRANSPARENCY AND REPORTING REQUIREMENTS
Sec. 601--Additional reporting on orders requiring
production of business records. In addition to existing annual
reporting requirements, this section requires the government to
report on the number of requests made for call detail records
under the new telephone metadata program.
Sec. 602--Business records compliance reports to Congress.
This section requires the government to provide to Congress any
compliance reports related to the use of Section 215.
Sec. 603--Annual report by the Director of the
Administrative Office of the United States Courts on orders
Entered. This section requires the Director of the
Administrative Office of the United States Court to make an
annual report on the number of orders issued under sections
105, 304, 402, 501, 702, 703, and 704 of FISA, as well as the
number of appointments of individuals to serve as amicus curiae
to the FISA court.
Sec. 604--Reporting requirements for decisions of the
Foreign Intelligence Surveillance Court. This section requires
the Attorney General to provide to the relevant committees,
within 45 days of each decision, order, or opinion that
includes a significant construction or interpretation, a copy
of each such decision and a brief statement of the relevant
background.
Sec. 605--Submission of reports under FISA. This section
includes the House Judiciary Committee in several existing
reporting requirements.
TITLE VII--SUNSETS
Sec. 701--USA PATRIOT Improvement and Reauthorization Act
of 2005. This section aligns the sunset of the three sun-
setting provisions of the USA PATRIOT Act with the sunset of
the FISA Amendment Act on December 31, 2017.
Agency Views
__________
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 italics, existing law in which no change
is proposed is shown in roman):
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act may be cited as the ``Foreign Intelligence
Surveillance Act of 1978''.
TABLE OF CONTENTS
* * * * * * *
[TITLE VI--REPORTING REQUIREMENT]
TITLE VI--OVERSIGHT
* * * * * * *
Sec. 602. Declassification of significant decisions, orders, and
opinions.
Sec. 603. Annual report on orders entered.
Sec. 604. Public reporting by persons subject to orders.
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
designation of judges
Sec. 103. (a) * * *
* * * * * * *
(i) Amicus Curiae.--
(1) Authorization.--A court established under
subsection (a) or (b), consistent with the requirement
of subsection (c) and any other statutory requirement
that the court act expeditiously or within a stated
time--
(A) shall appoint an individual to serve as
amicus curiae to assist such court in the
consideration of any application for an order
or review that, in the opinion of the court,
presents a novel or significant interpretation
of the law, unless the court issues a written
finding that such appointment is not
appropriate; and
(B) may appoint an individual to serve as
amicus curiae in any other instance as such
court deems appropriate.
(2) Designation.--The presiding judges of the
courts established under subsections (a) and (b) shall
jointly designate not less than 5 individuals to be
eligible to serve as amicus curiae. Such individuals
shall be persons who possess expertise in privacy and
civil liberties, intelligence collection,
telecommunications, or any other area of law that may
lend legal or technical expertise to the courts and who
have been determined by appropriate executive branch
officials to be eligible for access to classified
information.
(3) Duties.--An individual appointed to serve as
amicus curiae under paragraph (1) shall carry out the
duties assigned by the appointing court. Such court may
authorize the individual appointed to serve as amicus
curiae to review any application, certification,
petition, motion, or other submission that the court
determines is relevant to the duties assigned by the
court.
(4) Notification.--The presiding judges of the
courts established under subsections (a) and (b) shall
notify the Attorney General of each exercise of the
authority to appoint an individual to serve as amicus
curiae under paragraph (1).
(5) Assistance.--A court established under
subsection (a) or (b) may request and receive
(including on a non-reimbursable basis) the assistance
of the executive branch in the implementation of this
subsection.
(6) Administration.--A court established under
subsection (a) or (b) may provide for the designation,
appointment, removal, training, or other support for an
individual appointed to serve as amicus curiae under
paragraph (1) in a manner that is not inconsistent with
this subsection.
* * * * * * *
congressional oversight
Sec. 108. (a)(1) On a semiannual basis the Attorney General
shall fully inform [the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence,
and the Committee on the Judiciary of the Senate,] the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate concerning all electronic surveillance under this
title. Nothing in this title shall be deemed to limit the
authority and responsibility of the appropriate committees of
each House of Congress to obtain such information as they may
need to carry out their respective functions and duties.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
congressional oversight
Sec. 306. On a semiannual basis the Attorney General shall
fully inform the [Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate, and the Committee on the Judiciary
of the Senate,] Permanent Select Committee on Intelligence and
the Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate concerning all physical searches
conducted pursuant to this title. On a semiannual basis the
Attorney General shall also provide to those committees [and
the Committee on the Judiciary of the House of Representatives]
a report setting forth with respect to the preceding six-month
period--
(1) * * *
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
definitions
Sec. 401. As used in this title:
(1) * * *
* * * * * * *
(4) The term ``specific selection term'' has the
meaning given the term in section 501.
(5) The term ``minimization procedures'' means--
(A) specific procedures that are reasonably
designed in light of the purpose and technique
of an order for the installation and use of a
pen register or trap and trace device to
minimize the retention and prohibit the
dissemination of nonpublicly available
information concerning unconsenting United
States persons consistent with the need of the
United States to obtain, produce, and
disseminate foreign intelligence information;
(B) procedures that require that
nonpublicly available information, which is not
foreign intelligence information, as defined in
section 101(e)(1), shall not be disseminated in
a manner that identifies any United States
person, without such person's consent, unless
such person's identity is necessary to
understand foreign intelligence information or
assess its importance; and
(C) notwithstanding subparagraphs (A) and
(B), procedures that allow for the retention
and dissemination of information that is
evidence of a crime which has been, is being,
or is about to be committed and that is to be
retained or disseminated for law enforcement
purposes.
pen registers and trap and trace devices for foreign intelligence and
international terrorism investigations
Sec. 402. (a) * * *
* * * * * * *
(c) Each application under this section shall require the
approval of the Attorney General, or a designated attorney for
the Government, and shall include--
(1) the identity of the Federal officer seeking to
use the pen register or trap and trace device covered
by the application[; and];
(2) a certification by the applicant that the
information likely to be obtained is foreign
intelligence information not concerning a United States
person or is relevant to an ongoing investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely upon the basis of activities protected
by the first amendment to the Constitution[.];
(3) a specific selection term to be used as the
basis for selecting the telephone line or other
facility to which the pen register or trap and trace
device is to be attached or applied; and
(4) a statement of proposed minimization
procedures.
(d)(1) Upon an application made pursuant to this section,
the judge shall enter an ex parte order as requested, or as
modified, approving the installation and use of a pen register
or trap and trace device if the judge finds that the
application satisfies the requirements of this section and that
the proposed minimization procedures meet the definition of
minimization procedures under this title.
(2) An order issued under this section--
(A) * * *
(B) shall direct that--
(i) * * *
(ii) such provider, landlord, custodian, or
other person--
(I) * * *
(II) shall maintain, under security
procedures approved by the Attorney
General and the Director of National
Intelligence pursuant to section
105(b)(2)(C) of this Act, any records
concerning the pen register or trap and
trace device or the aid furnished[;
and];
* * * * * * *
(iv) the minimization procedures be
followed; and
* * * * * * *
(h) At or before the end of the period of time for which
the installation and use of a pen register or trap and trace
device is approved under an order or an extension under this
section, the judge may assess compliance with the minimization
procedures by reviewing the circumstances under which
information concerning United States persons was retained or
disseminated.
* * * * * * *
congressional oversight
Sec. 406. (a) * * *
(b) On a semiannual basis, the Attorney General shall also
provide to the committees referred to in subsection (a) and to
the Committees on the Judiciary of the House of Representatives
and the Senate a report setting forth with respect to the
preceding 6-month period--
(1) * * *
(2) the total number of such orders either granted,
modified, or denied[; and];
(3) the total number of pen registers and trap and
trace devices whose installation and use was authorized
by the Attorney General on an emergency basis under
section 403, and the total number of subsequent orders
approving or denying the installation and use of such
pen registers and trap and trace devices[.];
(4) each department or agency on behalf of which
the Government has made application for orders
approving the use of pen registers or trap and trace
devices under this title; and
(5) for each department or agency described in
paragraph (4), a breakdown of the numbers required by
paragraphs (1), (2), and (3).
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a) * * *
(b) Each application under this section--
(1) * * *
(2) shall include--
(A) a specific selection term to be used as
the basis for the production of the tangible
things sought;
[(A) a statement] (B) in the case of an
application other than an application described
in subparagraph (C), a statement of facts
showing that there are reasonable grounds to
believe that the tangible things sought are
relevant to an authorized investigation (other
than a threat assessment) conducted in
accordance with subsection (a)(2) to obtain
foreign intelligence information not concerning
a United States person or to protect against
international terrorism or clandestine
intelligence activities, such things being
presumptively relevant to an authorized
investigation if the applicant shows in the
statement of the facts that they pertain to--
(i) * * *
* * * * * * *
(iii) an individual in contact
with, or known to, a suspected agent of
a foreign power who is the subject of
such authorized investigation[; and];
(C) in the case of an application for the
production of call detail records created on or
after the date of the application, a statement
of facts showing that--
(i) there are reasonable grounds to
believe that the call detail records
sought to be produced based on the
specific selection term required under
subparagraph (A) are relevant to an
authorized investigation (other than a
threat assessment) conducted in
accordance with subsection (a)(2) to
protect against international
terrorism; and
(ii) there are facts giving rise to
a reasonable, articulable suspicion
that such specific selection term is
associated with a foreign power or an
agent of a foreign power; and
[(B)] (D) an enumeration of the
minimization procedures adopted by the Attorney
General under subsection (g) that are
applicable to the retention and dissemination
by the Federal Bureau of Investigation of any
tangible things to be made available to the
Federal Bureau of Investigation based on the
order requested in such application.
(c)(1) Upon an application made pursuant to this section,
if the judge finds that the application meets the requirements
of subsections (a) and (b) and that the minimization procedures
submitted in accordance with subsection (b)(2)(D) meet the
definition of minimization procedures under subsection (g), the
judge shall enter an ex parte order as requested, or as
modified, approving the release of tangible things. Such order
shall direct that minimization procedures adopted pursuant to
subsection (g) be followed.
(2) An order under this subsection--
(A) shall describe the tangible things that
are ordered to be produced with sufficient
particularity to permit them to be fairly
identified[;], including each specific
selection term to be used as the basis for the
production;
* * * * * * *
(D) may only require the production of a
tangible thing if such thing can be obtained
with a subpoena duces tecum issued by a court
of the United States in aid of a grand jury
investigation or with any other order issued by
a court of the United States directing the
production of records or tangible things[;
and];
(E) shall not disclose that such order is
issued for purposes of an investigation
described in subsection (a)[.]; and
(F) in the case of an application described
in subsection (b)(2)(C), shall--
(i) authorize the production of
call detail records for a period not to
exceed 180 days;
(ii) provide that an order for such
production may be extended upon
application under subsection (b) and
the judicial finding under paragraph
(1);
(iii) provide that the Government
may require the production of call
detail records--
(I) using the specific
selection term that satisfies
the standard required under
subsection (b)(2)(C)(ii) as the
basis for production; and
(II) using the results of
the production under subclause
(I) as the basis for
production;
(iv) direct each person the
Government directs to produce call
detail records under the order to
furnish the Government forthwith all
information, facilities, or technical
assistance necessary to accomplish the
production in such a manner as will
protect the secrecy of the production
and produce a minimum of interference
with the services that such person is
providing to each subject of the
production; and
(v) direct the Government to
destroy all call detail records
produced under the order not later than
5 years after the date of the
production of such records, except for
records that are relevant to an
authorized investigation (other than a
threat assessment) conducted in
accordance with subsection (a)(2) to
protect against international
terrorism.
(3) No order issued under this subsection may authorize the
collection of tangible things without the use of a specific
selection term that meets the requirements of subsection
(b)(2).
(d)(1) No person shall disclose to any other person that
the Federal Bureau of Investigation has sought or obtained
tangible things [pursuant to an order] pursuant to an order
issued or an emergency production required under this section,
other than to--
(A) those persons to whom disclosure is necessary
to comply with [such order] such order or such
emergency production;
(B) an attorney to obtain legal advice or
assistance with respect to the production of things in
response to [the order] the order or the emergency
production; or
* * * * * * *
(2)(A) A person to whom disclosure is made pursuant to
paragraph (1) shall be subject to the nondisclosure
requirements applicable to a person to whom [an order] an order
or emergency production is directed under this section in the
same manner as such person.
(B) Any person who discloses to a person described in
subparagraph (A), (B), or (C) of paragraph (1) that the Federal
Bureau of Investigation has sought or obtained tangible things
pursuant to [an order] an order or emergency production under
this section shall notify such person of the nondisclosure
requirements of this subsection.
* * * * * * *
[(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable to
any other person for such production. Such production shall not
be deemed to constitute a waiver of any privilege in any other
proceeding or context.]
(e) No cause of action shall lie in any court against a
person who produces tangible things or provides information,
facilities, or technical assistance pursuant to an order issued
or an emergency production required under this section. Such
production shall not be deemed to constitute a waiver of any
privilege in any other proceeding or context.
* * * * * * *
(i) Emergency Authority for Production of Tangible
Things.--
(1) Notwithstanding any other provision of this
section, the Attorney General may require the emergency
production of tangible things if the Attorney General--
(A) reasonably determines that an emergency
situation requires the production of tangible
things before an order authorizing such
production can with due diligence be obtained;
(B) reasonably determines that the factual
basis for the issuance of an order under this
section to approve such production of tangible
things exists;
(C) informs, either personally or through a
designee, a judge having jurisdiction under
this section at the time the Attorney General
requires the emergency production of tangible
things that the decision has been made to
employ the authority under this subsection; and
(D) makes an application in accordance with
this section to a judge having jurisdiction
under this section as soon as practicable, but
not later than 7 days after the Attorney
General requires the emergency production of
tangible things under this subsection.
(2) If the Attorney General authorizes the
emergency production of tangible things under paragraph
(1), the Attorney General shall require that the
minimization procedures required by this section for
the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving
the production of tangible things under this
subsection, the production shall terminate when the
information sought is obtained, when the application
for the order is denied, or after the expiration of 7
days from the time the Attorney General begins
requiring the emergency production of such tangible
things, whichever is earliest.
(4) A denial of the application made under this
subsection may be reviewed as provided in this section.
(5) If such application for approval is denied, or
in any other case where the production of tangible
things is terminated and no order is issued approving
the production, no information obtained or evidence
derived from such production shall be received in
evidence or otherwise disclosed in any trial, hearing,
or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and
no information concerning any United States person
acquired from such production shall subsequently be
used or disclosed in any other manner by Federal
officers or employees without the consent of such
person, except with the approval of the Attorney
General if the information indicates a threat of death
or serious bodily harm to any person.
(6) The Attorney General shall assess compliance
with the requirements of paragraph (5).
(j) Compensation.--The Government shall compensate, at the
prevailing rate, a person for producing tangible things or
providing information, facilities, or assistance in accordance
with an order issued or an emergency production required under
this section.
(k) Definitions.--In this section:
(1) Call detail record defined.--The term ``call
detail record''--
(A) means session identifying information
(including originating or terminating telephone
number, International Mobile Subscriber
Identity number, or International Mobile
Station Equipment Identity number), a telephone
calling card number, or the time or duration of
a call; and
(B) does not include--
(i) the contents of any
communication (as defined in section
2510(8) of title 18, United States
Code);
(ii) the name, address, or
financial information of a subscriber
or customer; or
(iii) cell site location
information.
(2) Specific selection term.--The term ``specific
selection term'' means a term used to uniquely describe
a person, entity, or account.
SEC. 502. CONGRESSIONAL OVERSIGHT.
(a) On an annual basis, the Attorney General shall fully
inform the [Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate]
Permanent Select Committee on Intelligence of the House of
Representatives, the Select Committee on Intelligence of the
Senate, and the Committees on the Judiciary of the House of
Representatives and the Senate concerning all requests for the
production of tangible things under section 501.
(b) In April of each year, the Attorney General shall
submit to the House and Senate Committees on the Judiciary and
the House Permanent Select Committee on Intelligence and the
Senate Select Committee on Intelligence a report setting forth
with respect to the preceding calendar year--
(1) any compliance reviews conducted by the Federal
Government of the production of tangible things under
section 501;
(2) the total number of applications described in
section 501(b)(2)(B) made for orders approving requests
for the production of tangible things;
(3) the total number of such orders either granted,
modified, or denied;
(4) the total number of applications described in
section 501(b)(2)(C) made for orders approving requests
for the production of call detail records;
(5) the total number of such orders either granted,
modified, or denied;
[(1)] (6) the total number of applications made for
orders approving requests for the production of
tangible things under section 501;
[(2)] (7) the total number of such orders either
granted, modified, or denied; and
[(3)] (8) the number of such orders either granted,
modified, or denied for the production of each of the
following:
(A) * * *
* * * * * * *
TITLE VI--[REPORTING REQUIREMENT] OVERSIGHT
SEC. 601. SEMIANNUAL REPORT OF THE ATTORNEY GENERAL.
(a) Report.--On a semiannual basis, the Attorney General
shall submit to the Permanent Select Committee on Intelligence
of the House of Representatives, the Select Committee on
Intelligence of the Senate, and the Committees on the Judiciary
of the House of Representatives and the Senate, in a manner
consistent with the protection of the national security, a
report setting forth with respect to the preceding 6-month
period--
(1) * * *
* * * * * * *
(4) a summary of significant legal interpretations
of this Act involving matters before the Foreign
Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including
interpretations presented in applications or pleadings
filed with the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review by the Department of Justice[; and];
(5) copies of all decisions, orders, or opinions of
the Foreign Intelligence Surveillance Court or Foreign
Intelligence Surveillance Court of Review that include
significant construction or interpretation of the
provisions of this Act[.]; and
(6) any compliance reviews conducted by the Federal
Government of electronic surveillance, physical
searches, the installation of pen register or trap and
trace devices, access to records, or acquisitions
conducted under this Act.
* * * * * * *
(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in subsection
(a)--
[(1) a copy of any decision, order, or opinion
issued by the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Surveillance Court of
Review that includes significant construction or
interpretation of any provision of this Act, and any
pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, not later than
45 days after such decision, order, or opinion is
issued; and]
(1) not later than 45 days after the date on which
the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review
issues a decision, order, or opinion that includes a
significant construction or interpretation of any
provision of this Act or a denial of a request for an
order or a modification of a request for an order, or
results in a change of application of any provision of
this Act or a new application of any provision of this
Act--
(A) a copy of such decision, order, or
opinion and any pleadings, applications, or
memoranda of law associated with such decision,
order, or opinion; and
(B) with respect to such decision, order,
or opinion, a brief statement of the relevant
background factual information, questions of
law, legal analysis, and decision rendered; and
* * * * * * *
SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS, ORDERS, AND
OPINIONS.
(a) Declassification Required.--Subject to subsection (b),
the Attorney General shall conduct a declassification review of
each decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review (as defined in section 601(e))
that includes a significant construction or interpretation of
any provision of this Act and, consistent with that review,
make publicly available to the greatest extent practicable each
such decision, order, or opinion.
(b) Redacted Form.--The Attorney General may satisfy the
requirement under subsection (a) to make a decision, order, or
opinion described in such subsection publicly available to the
greatest extent practicable by making such decision, order, or
opinion publicly available in redacted form.
(c) National Security Waiver.--The Attorney General may
waive the requirement to declassify and make publicly available
a particular decision, order, or opinion under subsection (a)
if the Attorney General--
(1) determines that a waiver of such requirement is
necessary to protect the national security of the
United States or properly classified intelligence
sources or methods; and
(2) makes publicly available an unclassified
summary of such decision, order, or opinion.
SEC. 603. ANNUAL REPORT ON ORDERS ENTERED.
The Director of the Administrative Office of the United
States Courts shall annually submit to the Permanent Select
Committee on Intelligence and the Committee on the Judiciary of
the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate
and make publicly available on an Internet website--
(1) the number of orders entered under each of
sections 105, 304, 402, 501, 702, 703, and 704;
(2) the number of orders modified under each of
those sections;
(3) the number of orders denied under each of those
sections; and
(4) the number of appointments of an individual to
serve as amicus curiae under section 103, including the
name of each individual appointed to serve as amicus
curiae.
SEC. 604. PUBLIC REPORTING BY PERSONS SUBJECT TO ORDERS.
(a) Reporting.--A person may semiannually publicly report
the following information with respect to the preceding half
year using one of the following structures:
(1) A report that aggregates the number of orders
or directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The number of national security letters
received, reported in bands of 1000 starting
with 0-999.
(C) The number of customer accounts
affected by national security letters, reported
in bands of 1000 starting with 0-999.
(D) The number of orders under this Act for
content, reported in bands of 1000 starting
with 0-999.
(E) With respect to content orders under
this Act, in bands of 1000 starting with 0-
999--
(i) the number of customer accounts
affected under orders under title I;
and
(ii) the number of customer
selectors targeted under orders under
title VII.
(F) The number of orders under this Act for
non-content, reported in bands of 1000 starting
with 0-999.
(G) With respect to non-content orders
under this Act, in bands of 1000 starting with
0-999--
(i) the number of customer accounts
affected under orders under--
(I) title I;
(II) title IV;
(III) title V with respect
to applications described in
section 501(b)(2)(B); and
(IV) title V with respect
to applications described in
section 501(b)(2)(C); and
(ii) the number of customer
selectors targeted under orders under
title VII.
(2) A report that aggregates the number of orders
or directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The total number of all national
security process received, including all
national security letters and orders under this
Act, reported as a single number in a band of
0-249 and thereafter in bands of 250.
(C) The total number of customer selectors
targeted under all national security process
received, including all national security
letters and orders under this Act, reported as
a single number in a band of 0-249 and
thereafter in bands of 250.
(3) A report that aggregates the number of orders
or directives the person was required to comply with in
the following separate categories:
(A) Criminal process, subject to no
restrictions.
(B) The number of national security letters
received, reported in bands of 500 starting
with 0-499.
(C) The number of customer accounts
affected by national security letters, reported
in bands of 500 starting with 0-499.
(D) The number of orders under this Act for
content, reported in bands of 500 starting with
0-499.
(E) The number of customer selectors
targeted under such orders, in bands of 500
starting with 0-499.
(F) The number of orders under this Act for
non-content, reported in bands of 500 starting
with 0-499.
(G) The number of customer selectors
targeted under such orders, reported in bands
of 500 starting with 0-499.
(b) National Security Letter Defined.--The term ``national
security letter'' means any of the following provisions:
(1) Section 2709 of title 18, United States Code.
(2) Section 1114(a)(5)(A) of the Right to Financial
Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)).
(3) Subsection (a) or (b) of section 626 of the
Fair Credit Reporting Act (15 U.S.C. 1681u(a),
1681u(b)).
(4) Section 627(a) of the Fair Credit Reporting Act
(15 U.S.C. 1681v(a)).
TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE
UNITED STATES
* * * * * * *
SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.
(a) * * *
(b) Limitations.--An acquisition authorized under
subsection (a)--
(1) * * *
(2) may not intentionally target a person
reasonably believed to be located outside the United
States if [the purpose] a purpose of such acquisition
is to target a particular, known person reasonably
believed to be in the United States;
* * * * * * *
(e) Minimization Procedures.--
(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National
Intelligence, shall adopt minimization procedures [that
meet] that--
(A) meet the definition of minimization
procedures under section 101(h) or 301(4), as
appropriate, for acquisitions authorized under
subsection (a)[.]; and
(B) consistent with such definition,
minimize the acquisition, and prohibit the
retention and dissemination, of any
communication as to which the sender and all
intended recipients are determined to be
located in the United States and prohibit the
use of any discrete, non-target communication
that is determined to be to or from a United
States person or a person who appears to be
located in the United States, except to protect
against an immediate threat to human life.
* * * * * * *
(i) Judicial Review of Certifications and Procedures.--
(1) * * *
* * * * * * *
(3) Orders.--
(A) * * *
* * * * * * *
(D) Limitation on use of information.--
(i) In general.--Except as provided
in clause (ii), no information obtained
or evidence derived from an acquisition
pursuant to a certification or
targeting or minimization procedures
subject to an order under subparagraph
(B) concerning any United States person
shall be received in evidence or
otherwise disclosed in any trial,
hearing, or other proceeding in or
before any court, grand jury,
department, office, agency, regulatory
body, legislative committee, or other
authority of the United States, a
State, or political subdivision
thereof, and no information concerning
any United States person acquired from
the acquisition shall subsequently be
used or disclosed in any other manner
by Federal officers or employees
without the consent of the United
States person, except with the approval
of the Attorney General if the
information indicates a threat of death
or serious bodily harm to any person.
(ii) Exception.--If the Government
corrects any deficiency identified by
the order of the Court under
subparagraph (B), the Court may permit
the use or disclosure of information
acquired before the date of the
correction under such minimization
procedures as the Court shall establish
for purposes of this clause.
* * * * * * *
----------
USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005
* * * * * * *
TITLE I--USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT
* * * * * * *
SEC. 102. USA PATRIOT ACT SUNSET PROVISIONS.
(a) * * *
(b) Sections 206 and 215 Sunset.--
(1) In general.--Effective [June 1, 2015] December
31, 2017, the Foreign Intelligence Surveillance Act of
1978 is amended so that sections 501, 502, and
105(c)(2) read as they read on October 25, 2001.
* * * * * * *
SEC. 106A. AUDIT ON ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN
INTELLIGENCE PURPOSES.
(a) * * *
(b) Requirements.--The audit required under subsection (a)
shall include--
(1) an examination of each instance in which the
Attorney General, any other officer, employee, or agent
of the Department of Justice, the Director of the
Federal Bureau of Investigation, or a designee of the
Director, submitted an application to the Foreign
Intelligence Surveillance Court (as such term is
defined in section 301(3) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an
order under section 501 of such Act during the calendar
years of 2002 through 2006 and calendar years 2012
through 2014, including--
(A) * * *
* * * * * * *
[(2) the justification for the failure of the
Attorney General to issue implementing procedures
governing requests for the production of tangible
things under such section in a timely fashion,
including whether such delay harmed national security;
[(3) whether bureaucratic or procedural impediments
to the use of such requests for production prevent the
Federal Bureau of Investigation from taking full
advantage of the authorities provided under section 501
of such Act;]
[(4)] (2) any noteworthy facts or circumstances
relating to orders under such section, including any
improper or illegal use of the authority provided under
such section; and
[(5)] (3) an examination of the effectiveness of
such section as an investigative tool, including--
(A) * * *
* * * * * * *
[(C) with respect to calendar year 2006, an
examination of the minimization procedures
adopted by the Attorney General under section
501(g) of such Act and whether such
minimization procedures protect the
constitutional rights of United States
persons;]
(C) with respect to calendar years 2012
through 2014, an examination of the
minimization procedures used in relation to
orders under section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
(D) whether, and how often, the Federal
Bureau of Investigation utilized information
acquired pursuant to an order under section 501
of such Act to produce an analytical
intelligence product for distribution within
the Federal Bureau of Investigation, to the
intelligence community [(as such term is
defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4)))], or
to other Federal, State, local, or tribal
government Departments, agencies, or
instrumentalities; and
* * * * * * *
(c) Submission Dates.--
(1) * * *
* * * * * * *
(3) Calendar years 2012 through 2014.-- Not later
than December 31, 2015, the Inspector General of the
Department of Justice shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence
of the Senate and the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the
results of the audit conducted under subsection (a) for
calendar years 2012 through 2014.
(d) Intelligence Assessment.--
(1) In general.--For the period beginning on
January 1, 2012, and ending on December 31, 2014, the
Inspector General of the Intelligence Community shall
assess--
(A) the importance of the information
acquired under title V of the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1861 et seq.) to the activities of the
intelligence community;
(B) the manner in which that information
was collected, retained, analyzed, and
disseminated by the intelligence community;
(C) the minimization procedures used by
elements of the intelligence community under
such title and whether the minimization
procedures adequately protect the
constitutional rights of United States persons;
and
(D) any minimization procedures proposed by
an element of the intelligence community under
such title that were modified or denied by the
court established under section 103(a) of such
Act (50 U.S.C. 1803(a)).
(2) Submission date for assessment.--Not later than
December 31, 2015, the Inspector General of the
Intelligence Community shall submit to the Committee on
the Judiciary and the Select Committee on Intelligence
of the Senate and the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the
House of Representatives a report containing the
results of the assessment for calendar years 2012
through 2014.
[(d)] (e) Prior Notice to Attorney General and Director of
National Intelligence; Comments.--
(1) Notice.--Not less than 30 days before the
submission of [a report under subsection (c)(1) or
(c)(2)] any report under subsection (c) or (d), the
[Inspector General of the Department of Justice]
Inspector General of the Department of Justice, the
Inspector General of the Intelligence Community, and
any Inspector General of an element of the intelligence
community that prepares a report to assist the
Inspector General of the Department of Justice or the
Inspector General of the Intelligence Community in
complying with the requirements of this section shall
provide such report to the Attorney General and the
Director of National Intelligence.
(2) Comments.--The Attorney General or the Director
of National Intelligence may provide comments to be
included in [the reports submitted under subsections
(c)(1) and (c)(2)] any report submitted under
subsection (c) or (d) as the Attorney General or the
Director of National Intelligence may consider
necessary.
[(e)] (f) Unclassified Form.--[The reports submitted under
subsections (c)(1) and (c)(2)] Each report submitted under
subsection (c) and any comments included under [subsection
(d)(2)] subsection (e)(2) shall be in unclassified form, but
may include a classified annex.
(g) Definitions.--In this section:
(1) Intelligence community.--The term
``intelligence community'' has the meaning given that
term in section 3 of the National Security Act of 1947
(50 U.S.C. 3003).
(2) United States person.--The term ``United States
person'' has the meaning given that term in section 101
of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801).
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
PART I--CRIMES
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2709. Counterintelligence access to telephone toll and
transactional records
(a) * * *
(b) Required Certification.--The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director at Bureau headquarters or
a Special Agent in Charge in a Bureau field office designated
by the Director, [may] may, using a specific selection term as
the basis for a request--
(1) * * *
* * * * * * *
(g) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
* * * * * * *
----------
RIGHT TO FINANCIAL PRIVACY ACT OF 1978
* * * * * * *
TITLE XI--RIGHT TO FINANCIAL PRIVACY
* * * * * * *
special procedures
Sec. 1114. (a)(1) * * *
(2) In the instances specified in paragraph (1), the
Government authority shall submit to the financial institution
the certificate required in section 1103(b) signed by a
supervisory official of a rank designated by the head of the
Government authority[.] and a specific selection term to be
used as the basis for the production and disclosure of
financial records.
* * * * * * *
(e) In this section, the term ``specific selection term''
has the meaning given the term in section 501 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).
----------
FAIR CREDIT REPORTING ACT
* * * * * * *
TITLE VI--CONSUMER CREDIT REPORTING
* * * * * * *
Sec. 626. Disclosures to FBI for counterintelligence purposes
(a) Identity of Financial Institutions.--Notwithstanding
section 604 or any other provision of this title, a consumer
reporting agency shall furnish to the Federal Bureau of
Investigation the names and addresses of all financial
institutions (as that term is defined in section 1101 of the
Right to Financial Privacy Act of 1978) at which a consumer
maintains or has maintained an account, to the extent that
information is in the files of the agency, when presented with
a written request for [that information,] that information that
includes a specific selection term to be used as the basis for
the production of that information, signed by the Director of
the Federal Bureau of Investigation, or the Director's designee
in a position not lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in Charge of a Bureau
field office designated by the Director, which certifies
compliance with this section. The Director or the Director's
designee may make such a certification only if the Director or
the Director's designee has determined in writing, that such
information is sought for the conduct of an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.
* * * * * * *
(n) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
Sec. 627. Disclosures to governmental agencies for counterterrorism
purposes
(a) Disclosure.--Notwithstanding section 604 or any other
provision of this title, a consumer reporting agency shall
furnish a consumer report of a consumer and all other
information in a consumer's file to a government agency
authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to,
international terrorism when presented with a written
certification by such government agency that such information
is necessary for the agency's conduct or such investigation,
activity or [analysis.] analysis and a specific selection term
to be used as the basis for the production of such information.
* * * * * * *
(g) Specific Selection Term Defined.--In this section, the
term ``specific selection term'' has the meaning given the term
in section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861).
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS.
(a) * * *
(b) Sunset.--
(1) In general.--Except as provided in paragraph
(2), the amendment made by subsection (a) shall cease
to have effect on [June 1, 2015] December 31, 2017.
* * * * * * *
Additional Views
The USA FREEDOM Act as reported by the Judiciary Committee
is a step in the right direction in protecting Americans' right
to privacy, but falls short of what Congress should do to
protect the Fourth Amendment rights of Americans. The bill as
introduced provided important substantive reforms that not only
ended bulk data collection under section 215, but also fixed a
loophole in section 702 that allowed intelligence agencies to
search communications of Americans without a warrant.
Unfortunately, the reforms offered by the USA FREEDOM Act
were scaled back by a Manager's amendment that was a result of
negotiations between the Judiciary and the Intelligence
Committees. While I recognize the value of reaching compromise
that advances respect for the Constitution by American
Intelligence agencies, I believe the Act as reported has a
number of deficiencies that may be improved by further
amendments.
I offered five amendments during the mark-up of this bill.
One was withdrawn with a promise by the Chairman to further
examine what I perceived as a drafting error, the rest were all
defeated by voice vote.
One of the most important amendments I offered would have
closed the loophole found in section 702 of The Foreign
Intelligence Surveillance Act (FISA).\1\ The NSA has admitted
to using this loophole,\2\ which is inconsistent with the rest
of Title VII that requires probable cause when dealing with
U.S. persons' communications. FISA was originally enacted in
response to unchecked spying by Federal intelligence agencies
on U.S. citizens for political purposes.\3\ It is ironic that a
law designed to prevent inappropriate domestic spying is today
susceptible to this kind of abuse. My amendment required that a
warrant be obtained to search the database for communications
of U.S. persons collected under section 702. This provision was
included in the USA FREEDOM Act as originally introduced.
During markup it was suggested that the minimization procedures
in this act make the need for Fourth Amendment protection of
Americans unnecessary. I believe this assertion to be
incorrect, and that the Fourth Amendment rights of Americans
need the protection that the probable cause standard would
provide. Moreover, minimization standards do not prevent the
search and collection of the information in the first place.
---------------------------------------------------------------------------
\1\50 USC Sec. 1181a.
\2\Director James Clapper's March 28, 2014 letter to Senator Ron
Wyden.
\3\Mitra Ebadolahi, Warrantless Wiretapping Under the FISA
Amendments Act, ABA Human Rights Magazine Vol. 39 No. 3.
---------------------------------------------------------------------------
I also offered an amendment to require a probable cause
warrant before obtaining data of Americans under Section 215.
During the markup debate it was stated that to date no court
has given content held by third parties Fourth Amendment
protection. It is correct that the majority of courts have not
recognized a Fourth Amendment right to privacy for information
held by third parties but at least one has.
The Sixth Circuit Court of Appeals ruled in 2010 that
warrantless email searches violate the Fourth Amendment.\4\ The
court found that ``government agents violated [defendant's]
Fourth Amendment rights by compelling [defendant's ISP] to turn
over the emails without first obtaining a warrant based on
probable cause.''\5\
---------------------------------------------------------------------------
\4\United States v. Warshak, 631 F.3d 266.
\5\Id. at 274.
---------------------------------------------------------------------------
Additionally, albeit in the context of a claim of marital
privilege, rather than a Fourth Amendment claim, the Fourth
Circuit endorsed the notion of a reasonable expectation of
privacy in email, stating: ``[E]mails today, `in common
experience,' are confidential.''\6\ It is long established
Supreme Court precedent that ``a Fourth Amendment search occurs
when the government violates a subjective expectation of
privacy that society recognizes as reasonable.''\7\ The trend
of what society deems as a reasonable expectation of privacy is
clear.
---------------------------------------------------------------------------
\6\United States v. Hamilton, 701 F.3d 404 (Fourth Cir. 2012) at
408 (citation omitted)
\7\Kyllo v. United States, 533 U. S. 27, 33 (emphasis added)
---------------------------------------------------------------------------
It was Justice Brandeis' dissent in the seminal case of
Olmstead v. U.S. that formed the foundation of how to think
about privacy and the Fourth Amendment in the modern era. In
it, he tried to craft a general right to privacy based on an
integration of the principles of the Fourth and Fifth
Amendments.\8\ He argued that ``the progress of science in
furnishing the Government with means of espionage is not likely
to stop with wire-tapping. Ways may someday be developed by
which the government, without removing papers from secret
drawers, can reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate occurrences of
the home. Advances in the psychic and related sciences may
bring means of exploring unexpressed beliefs, thoughts and
emotions.''\9\
---------------------------------------------------------------------------
\8\Olmstead v. United States, 277 U.S. 438, 471 (1928) JUSTICE
BRANDEIS, dissenting.
\9\Id. at 474
---------------------------------------------------------------------------
He could not have written more prophetically. The
government may now reproduce documents ``without removing
papers from secret drawers''\10\ through the technological
mechanism of cloud storage. The analysis of metadata and other
data collected in bulk has brought ``means of exploring
unexpressed beliefs.''\11\ Brandeis recognized that the Fourth
Amendment was crafted in a particular moment in history, very
different from the technologically sophisticated era in which
we live. However the Fourth Amendment guarantees security in
our persons, papers and effects. This security is deeply
undermined when old doctrines are reflexively imported into a
technological context that the founders could never have
anticipated.
---------------------------------------------------------------------------
\10\Id.
\11\Id.
---------------------------------------------------------------------------
More recently, in his decision in Kyllo v. United States,
Justice Antonin Scalia recognized the need for the law to adapt
to preserve traditional expectations of privacy from
technological advances in a ruling that found that a thermal
imaging device that measured heat emanating from a house
constituted a search.\12\
---------------------------------------------------------------------------
\12\Kyllo v. United States, 533 U.S. 27, 40 (2001)
---------------------------------------------------------------------------
In order to take up Justice Brandeis' challenge to preserve
the right to privacy as technology develops we must acknowledge
that this right does not fit neatly into one silo in the
digital world. Information that generally has no Fourth
Amendment protection as a consequence of the doctrine that
there is a lack of privacy expectations in records held by a
third party may still intuitively fall within what Americans
consider the private realm. In order to preserve any private
realm in modern society, we must rethink the level of
protection afforded to business records, and the expectation of
privacy regarding information held by third parties.
The amendment I offered would have ensured that the private
information contained in business records and communications
metadata required a showing of probable cause before being
obtained. Section 215 of the Patriot Act allows for the
collection of business records and phone metadata if there are
reasonable grounds to believe that the information being sought
is relevant to an authorized investigation. While the USA
FREEDOM Act as amended does take steps to prevent the bulk
collection of business records under section 215, it leaves the
current standard of ``reasonable grounds'' untouched for
everything but telephone metadata, which uses the modestly
higher standard of ``reasonable articulable suspicion.''
In his testimony before the Senate Judiciary Committee,
Princeton Computer Science professor Edward Felten said:
``Metadata can now yield startling insights about individuals
and groups, particularly when collected in large quantities
across the population. It is no longer safe to assume that this
'summary' or 'non-content' information is less revealing or
less sensitive than the content it describes . . .''\13\ and
``. . . newfound data storage capacity has led to new ways of
exploiting the digital record. Sophisticated computing tools
permit the analysis of large datasets to identify embedded
patterns and relationships, including personal details, habits
and behavior.''\14\
---------------------------------------------------------------------------
\13\Written Testimony of Edward W. Felten Professor of Computer
Science and Public Affairs, Princeton University United States Senate,
Committee on the Judiciary Hearing on Continued Oversight of the
Foreign Intelligence Surveillance Act October 2, 2013, at 1.
\14\Id. At 5.
---------------------------------------------------------------------------
Professor Felten went on to explain that ``although the
metadata might, on first impression seem to be little more than
'information concerning the numbers dialed' analysis of
telephony metadata often reveals information that could
traditionally, only be obtained by examining the content of
communications. [That is], Metadata is often a proxy for
content.''\15\
---------------------------------------------------------------------------
\15\Id. At 8
---------------------------------------------------------------------------
Indeed, former NSA general counsel Stewart Baker stated
``Metadata absolutely tells you everything about somebody's
life. If you have enough metadata, you don't really need
content . . .''\16\
---------------------------------------------------------------------------
\16\Alan Rudsbridger, The Snowden Leaks and the Public, The New
York Review of Books, Nov. 21, 2013 quoting Steward Baker.
---------------------------------------------------------------------------
That this is the case is clear when we consider the kinds
and amount of information collected in the ordinary course of
business today. In the age of big data, mobile computing and
the ``internet of things,'' your cell phone knows everywhere
you go, search engines know your deepest thoughts and most
embarrassing questions, online advertisers know everywhere you
go, and thanks to the advances in cheap storage and computing
power that underlie the big data revolution all of this
information can be processed, indexed, and combined with other
sources of mass data to tell you more about a person than they
know about themselves.
Entire companies are built today on the premise that they
can know what you want before you do. This trend will only
increase as technology becomes more and more sophisticated and
processors and wireless internet connections are added to our
thermostats, our refrigerators, even our door locks. It is for
this reason that a real discussion about requiring probable
cause to obtain business records needs to take place.
However, it is important that discussions about privacy
protections that should be offered to third party held data
also consider how it's stored and where. It's long been
accepted that the Constitution governs the United States, not
the rest of the world. Where one would need a warrant to search
a place within the physical borders of the United States, a
warrant is not required--or even available to apply for or to
receive--to search outside of the physical boundaries of the
United States.
But does that doctrine still make sense? If the servers of
Internet providers are scattered across the globe, and the
private data of Americans held within them, can it be argued
that the mere location of the servers that make up the
``cloud'' are the defining element of how American privacy is
to be protected? If the American government could legally
vacuum up the emails, address books and stored communications
of Americans because the data was accessible in Europe or Asia
instead of North Dakota or Utah, does that make a difference in
reality as compared to law? As the Court in Katz said ``the
Fourth Amendment protects people, not places.''\17\
---------------------------------------------------------------------------
\17\Katz at 351.
---------------------------------------------------------------------------
I also offered two amendments that sought to restrict how
communications were targeted and under what subject matter
using section 702 authority was appropriate. Congress and our
country has been told repeatedly that surveillance is being
deployed to prevent terrorists from harming our country.
However, in a process sanctioned by the FISA Courts, the NSA
currently sweeps up not only communications to or from an
intelligence target, but also all communications ``about'' the
target. False positives and intentional uses of vague ``about''
criteria can create the opportunity for the massive collection
of U.S. persons' communications. My amendment would prevent
this by limiting the collection communications to only when one
of the parties to that communication is the target of an
authorized investigation.
The subject matter jurisdiction that gives rise to
surveillance activity under the act is ``foreign intelligence
information,'' which includes ``foreign policy,'' not
terrorism. I offered an amendment that removed ``foreign
policy'' from the definition of ``foreign intelligence
information'' to clarify that 702 in particular is only for
counterterrorism, proliferation of WMDs, or to protect armed
forces. Absent this clarification, the diminution of freedom
represented by the Foreign Intelligence Surveillance Act may be
used not just to protect against terrorists or to advance
military interests, but simply to advance goals related to
foreign policy, including trade and related endeavors. That is
not the bargain struck by the American people to protect their
safety, and calls out for a tighter definition.
The last amendment I offered clarified what I hope was a
drafting error in the Manager's Amendment. The Manager's
Amendment states that telephone metadata did not include the
content of calls. An ambiguity may have been created as to
whether business records under section 215 could include the
content of other communications since a similar prohibition is
not directed toward those records. Is it the Committee's intent
that content generated by Americans held by third parties as
business records--other than telephonic metadata--be available
under the low evidentiary standards of Section 215? If not, a
clarification on this point would be helpful. I withdrew this
amendment with the assurance of the Chairman of the committee
that this potential clerical error would be further examined.
Finally, as legislators we can do our best to enact clear
restrictions on obtaining Americans' private data, but without
transparency it is difficult to know whether those restrictions
are ultimately effective. An amendment offered by Rep. Delbene
fixed a defect in the Manager's Amendment and will allow
recipients of surveillance orders to issue reports regarding
the number of orders received and user accounts affected by
those orders. However, Members on both sides of the aisle,
including Rep. Delbenne agreed that even more accurate
reporting would improve the amendment adopted during mark up.
The USA FREEDOM Act provided for reporting in ``bands'' of 100
and incorporated my bill, the Surveillance Order Reporting Act,
which outlined the more precise reporting opportunities. These
narrower bands should be included in this measure as the bill
moves forward in the legislative process. More accurate
reporting would allow businesses who receive surveillance
orders to serve as our ``canary in the coal mine,'' so that it
does not take another historic national security data breach to
learn that intelligence agencies are violating the privacy of
our citizens.
I support the improvements to the status quo offered by the
USA FREEDOM Act as amended, but I believe that our obligation
to support the Fourth Amendment should lead us to do more. The
USA FREEDOM Act should be just the beginning of this
discussion, rather than its conclusion. I hope to have the
opportunity to offer amendments not adopted by the Judiciary
Committee when the full House considers this matter.
Zoe Lofgren.
