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49-006
2d Session
Part 1
--ELECTRONIC SURVEILLANCE MODERNIZATION ACT
[To accompany H.R. 5825]
[Including cost estimate of the Congressional Budget Office]
| `Sec. 112. Authorization following a terrorist attack upon the United States.'. |
| `Sec. 113. Authorization due to imminent threat.'. |
The purpose of H.R. 5825 is to modernize the Foreign Intelligence Surveillance Act, to strengthen oversight of the executive branch concerning electronic surveillance and intelligence, and to provide clear electronic surveillance authority to the nation's intelligence agencies in the event of a terrorist attack, armed attack, or imminent threat against the United States.
A. Background and need for legislation
The Foreign Intelligence Surveillance Act (`FISA') provides the legal framework for collecting specified types of foreign intelligence information within the United States. The current legal and technical framework relative to FISA was constructed in 1978. The complexity, variety and means of communications technology has since mushroomed exponentially and globally--but the structure of our surveillance laws has remained hidebound around the technology of generations-old wired telephones.
The Committee received testimony that the current provisions of FISA are `dangerously obsolete'. This bill modernizes the law in a number of critical respects. It updates FISA to make it technology neutral, and neutral as to the means of communication. It streamlines the surveillance approval process to keep the focus on gaining knowledge of those who would do harm to the United States while protecting the civil liberties of average Americans. It gives our intelligence personnel the necessary tools to help detect and prevent acts of terrorism, and to respond to armed attacks and terrorist attacks. As reported, the bill also ensures that adequate authority exists to conduct necessary electronic surveillance when a threat of imminent attack exists.
H.R. 5825 also enhances congressional and judicial oversight of U.S. government electronic surveillance activities to ensure that activities conducted under both FISA and the authorities provided in the bill will be utilized by the President only with the knowledge and coordination of the other branches of government. More broadly than just FISA, the bill as reported also addresses fundamental separation of powers concerns expressed by members of the Committee through amendments to the National Security Act by providing express authority for the Chairmen of the congressional intelligence Committees to broaden reporting on sensitive issues to additional members of the Committee at his or her discretion on a bipartisan basis in the necessary circumstances.
This bill enhances the overall authorities of our nation to act as a whole to protect itself in times of war and heightened threat of attack--both terrorist and otherwise.
B. Legislation
The bill contains provisions relating to modernization of the Foreign Intelligence Surveillance Act, additional authorization to conduct limited electronic surveillance in specifically defined emergency circumstances with enhanced reporting to Congress and the Judiciary, and to enhance congressional oversight of both electronic surveillance and other intelligence and intelligence-related activities of the United States.
1. FISA modernization
Sections two through six of the bill, further detailed in the following section-by-section analysis, contain provisions intended to modernize the Foreign Intelligence Surveillance Act. The bill updates the definition of electronic surveillance contained in the statute to make it technology neutral and to ensure that the FISA process is directed to circumstances where a reasonable expectation of privacy exists and a warrant would be required for law enforcement purposes. The bill also would modernize and simplify the process of getting a FISA warrant in order to focus resources on protecting the civil liberties of Americans.
2. Enhanced authorities
Sections seven through nine of the reported bill provide clear authority to United States intelligence agencies in the event of an armed attack, terrorist attack, or threat of imminent attack on the United States. These provisions include limits on the type of surveillance that may be conducted, and provide for enhanced accountability.
Section seven expands the authority in current law to conduct electronic surveillance following an armed attack against the United States to a period of sixty days, and adds a requirement that the President submit notification of any authorization under this authority to the congressional intelligence committees.
Section eight provides authority to conduct specified electronic surveillance after a terrorist attack on the United States, on notification to the congressional intelligence committees and a judge of the FISA court. The authority is limited to renewable 45 day periods, and the authorization is limited to electronic surveillance of persons when the President determines there is a reasonable belief that a person is communicating with a terrorist organization or an affiliate of a terrorist organization that is reasonably believed to be responsible for the terrorist attack, and that the information obtained may be foreign intelligence information. Additional constraints are provided with respect to electronic surveillance of United States persons.
Section nine provides authority to conduct specified electronic surveillance when the President has determined that there exists an imminent threat of attack likely to cause death, serious injury, or substantial economic damage to the United States, on notification to the congressional intelligence committees and the FISA court. The authority is limited to renewable 90 day periods, and additional congressional committees must be notified if the authority is renewed. The authorization is limited to electronic surveillance of persons when the President determines there is a reasonable belief that a person is communicating with the entity or an affiliate reasonably believed to be responsible for the imminent threat of attack, and that the information obtained may be foreign intelligence information. Additional constraints are provided with respect to electronic surveillance of United States persons.
3. Enhanced Congressional oversight
The bill enhances congressional oversight not only of electronic surveillance, but also more generally of intelligence and intelligence-related activities of the United States Government. Each of the enhanced authorities provided in the bill includes specific and detailed requirements for reporting to Congress. In addition, Section ten of the bill requires the FISA semi-annual report to include information regarding the authority under which electronic surveillance is conducted, and provides for reporting on any electronic surveillance conducted without a court order.
The bill also makes significant amendments to the National Security Act of 1947 that would authorize the Chair of each of the congressional intelligence committees to inform any or all other members and essential staff of each Committee of reporting of intelligence activities received under that Act, on a bipartisan basis, as such Chair considers necessary in his or her discretion.
The Committee held two public hearings with respect to modernization of the Foreign Intelligence Surveillance Act. On July 19, 2006, the Committee received testimony from Judge Richard A. Posner; Mr. Kim Taipale of the Center for Advanced Studies in Science and Technology Policy; Mr. Michael Greco of the American Bar Association; and Mr. James Dempsey of the Center for Democracy and Technology. On July 27, 2006, the Committee received testimony from Representative Heather Wilson regarding H.R. 5825; from Representative John Conyers regarding H.R. 5371; and from Representative Adam Schiff and Representative Jeff Flake regarding H.R. 4976.
On September 20, 2006, the Committee met in open session and ordered the bill H.R. 5825 favorably reported, as amended.
Ms. Wilson offered an amendment in the nature of a substitute to H.R. 5825, which was considered as base text by unanimous consent. The contents of the amendment in the nature of a substitute are described in the Section-by-Section analysis and the Explanation of Amendment. The Committee considered the following amendments:
Ms. Harman offered an amendment in the nature of a substitute containing the text of H.R. 5371, the `LISTEN Act'. It was not agreed to by a record vote of 9 ayes to 10 noes:
Ms. Eshoo offered an amendment making modifications to the definition of electronic surveillance. It was not agreed to by a record vote of 9 ayes to 10 noes:
Mr. Hastings offered an amendment relating to acquisition of communications among foreign parties. It was not agreed to by a record vote of 8 ayes to 11 noes:
Mr. Holt offered an amendment inserting a finding that in passing the Foreign Intelligence Surveillance Act, Congress expressly stated that FISA and specified provisions of title 18, United States Code, were the exclusive means by which surveillance can be conducted in the United States. It was not agreed to by a record vote of 8 ayes to 9 noes:
Mr. Reyes offered an amendment inserting a finding that the Authorization for Use of Military Force (Public Law 107-40) does not constitute legal authorization for electronic surveillance not authorized by specified provisions of Title 18, United States Code, or the Foreign Intelligence Surveillance Act. It was not agreed to by a record vote of 8 ayes to 9 noes:
Mr. Holt offered an amendment inserting a finding that in passing the Foreign Intelligence Surveillance Act, Congress expressly stated that FISA and specified provisions of title 18, United States Code, were the exclusive means by which electronic surveillance can be conducted in the United States. It was not agreed to by a record vote of 8 ayes to 9 noes:
The Committee then adopted the amendment in the nature of a substitute by a record vote of 9 ayes to 8 noes:
By voice vote, the Committee adopted a motion by the Chairman to favorably report the bill H.R. 5825 to the House, as amended.
The provisions of the bill are as follows:
Section 1--Short title
Section 1 contains the short title for the bill.
Section 2--FISA definitions
Section 2 would update the definition of electronic surveillance. This change would update the law to take into account significant changes in technology since the enactment of the Foreign Intelligence Surveillance Act (`FISA'). This section would remove the current distinction between treatment of `wire' and `radio' communications, and use a technology-neutral definition of electronic surveillance. This section also provides protection for persons with a reasonable expectation of privacy if both the sender and all intended recipients are located within the United States.
Section 3--Authorization for electronic surveillance for foreign intelligence purposes
Section 3 would modernize the law by including providers of any electronic communication service, landlord, custodian, or other person who has access to electronic communications. This section updates the current `common carrier' definition.
Sections 4 and 5--Applications for court orders/issuance of an order
Sections 4 and 5 would simplify the process for developing information to get approval of a FISA warrant. This section would reduce the volume of material required for a FISA application, including minimizing the detailed description of the nature of foreign intelligence information sought and the detailed descriptions of the intended method of collection. The FISA application should focus on probable cause for a warrant rather than technical details about the means of collection. Current protections and minimization procedures will remain in place to protect unintended targets. In the event of an emergency employment of electronic surveillance, the Attorney General would have up to five days to file for an emergency application.
Section 6--Use of information
Section 6 clarifies and makes conforming changes with respect to previous sections and FISA.
Section 7--Authorization after an armed attack
Section 7 updates the current FISA provisions for electronic surveillance to provide clear authority for U.S. intelligence agencies to conduct electronic surveillance in the event of an armed attack on the United States. The President, through the Attorney General, is authorized to collect electronic surveillance without a court order to acquire foreign intelligence information for a period not to exceed 60 days following an armed attack against the territory of the United States. The current statute allows for 15 days after a declaration of war by the Congress. Notification to the House Permanent Select Committee on Intelligence (`HPSCI') and Senate Select Committee on Intelligence (`SSCI') is required.
Section 8--Authorization of electronic surveillance after a terrorist attack
Section 8 governs electronic surveillance after a terrorist attack. The President, acting through the Attorney General, would have the authority to authorize electronic surveillance to acquire foreign intelligence information without an order when the terrorist organizations and their affiliates responsible for the attack have been identified and notified to the Congress and the FISA court, when there is a reasonable belief that the target is communicating with a terrorist organization, for a period not to exceed 45 days following a terrorist attack against the U.S. Notification to the HPSCI and SSCI and to the FISA court is required. The President may submit a subsequent certification to Congress which would allow for an additional 45 days of electronic surveillance.
Section 9--Authorization of electronic surveillance after threat of imminent attack
Section 9 allows the President to authorize electronic surveillance when there exists an imminent threat of attack likely to cause death, serious injury, or substantial economic damage to the United States when the entities and their affiliates responsible for the threat have been identified and notified to the Congress and the FISA court, when there is a reasonable belief that the target is communicating with those entities and affiliates, for a period not to exceed 90 days. The President must submit notification to Congress as soon as practicable, but not later than five days after the authorization. The President may submit subsequent certifications to Congress which would allow for additional 90 day periods of surveillance, with notification to additional congressional committees.
Section 10--Congressional oversight
Section 10 of the Act would strengthen congressional oversight by amending current law to provide authority to the Chairman of each of the Intelligence Committees to notify all members or any individual members of the Committees, on a bipartisan basis and as the Chair considers necessary, of reporting of intelligence activities received under the National Security Act.
Section 11--Technical and conforming amendments
Section 11 makes technical clarifications and conforming amendments to FISA.
With respect to clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee held two open hearings, receiving testimony from outside experts, interested citizens, and Members of Congress. The Committee reports that the findings and recommendations of the Committee are reflected in the bill, as reported by the Committee.
In accordance with Clause (3)(c) of House rule XIII, the Committee's performance goals and objectives are reflected in the descriptive portions of this report.
The intelligence and intelligence-related activities of the United States government are carried out to support the national security interests of the United States.
Article 1, section 8 of the Constitution of the United States provides, in pertinent part, that `Congress shall have power * * * to pay the debts and provide for the common defense and general welfare of the United States; * * *'; and `to make all laws which shall be necessary and proper for carrying into execution * * * all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104-4) requires a statement of whether the provisions of the reported bill include unfunded mandates. In compliance with this requirement, the Committee has received a letter from the Congressional Budget Office included herein.
The Committee finds that the legislation does not address the terms of conditions of employment or access to public services or accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act.
The reported bill contains no earmarks, as defined in H. Res. 1000.
With respect to the requirements of clause 3(c)(2) of rule XIII of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of 3(c)(3) of rule XIII of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for H.R. 5825 from the Director of the Congressional Budget Office:
Hon. PETER HOEKSTRA,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 5825, the Electronic Surveillance Modernization Act.
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Jason Wheelock.
Sincerely,
DONALD B. MARRON,
Acting Director.
Enclosure.
H.R. 5825--Electronic Surveillance Modernization Act
Summary: H.R. 5825 would modify the rules and procedures the government must follow to use electronic surveillance programs in the investigation of international terrorism. The bill would amend the definition of electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) to remove the current distinction between treatment of wire and radio communications, and to focus FISA protections on domestic communications.
The bill also would expand the ability of the government to conduct electronic surveillance without warrant when:
H.R. 5825 would also authorize the Attorney General, after obtaining the certification required under the bill, to require any U.S. citizen, legal alien, or organization with access to electronic communications to provide the government with all assistance necessary to conduct electronic surveillance and to acquire foreign intelligence information. Under current law, the Attorney General may direct a `common carrier' to provide such assistance with electronic surveillance. Thus, implementing H.R. 5825 could expand the number of entities that may be required to provide assistance to the government when it conducts electronic surveillance.
The bill would also make a number of changes that could reduce the volume of material required for a FISA application, including minimizing the detailed descriptions of both the nature of the foreign intelligence information sought and the intended method of collection.
CBO has no basis for predicting how the volume or type of surveillance would be changed if H.R. 5825 were enacted. Furthermore, information regarding surveillance techniques and their associated costs is classified. For these reasons, CBO cannot estimate the impact on the federal budget of implementing H.R. 5825.
Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions that are necessary for national security. CBO has determined that section 9 of this bill, which would authorize certain electronic surveillance without a warrant due to an imminent threat of attack, falls under that exclusion; we have not reviewed it for intergovernmental or private-sector mandates.
One of the other provisions of H.R. 5825 contains an intergovernmental mandate, but CBO estimates that costs to state and local governments would fall well below the annual threshold established in UMRA ($64 million in 2006, adjusted annually for inflation).
H.R. 5825 contains a private-sector mandate, as defined in UMRA, because it would require certain entities to assist the government with electronic surveillance. Because CBO has no information about the prevalence of electronic surveillance and the cost of compliance for entities assisting the government with electronic surveillance, CBO has no basis for estimating the costs of the mandate or whether those costs would exceed the annual threshold established by UMRA for private-sector mandates ($128 million in 2006, adjusted annually for inflation).
Estimated cost to the Federal Government: CBO cannot estimate the budgetary impact of implementing H.R. 5825 because we cannot predict how the volume or type of surveillance would change under this legislation. Moreover, information regarding surveillance technologies and their associated costs are classified.
Any changes in federal spending under the bill would be subject to the appropriation of the necessary funds. Enacting H.R. 5825 would not affect direct spending or revenues.
Estimated impact on state, local, and tribal governments: Section 4 of UMRA excludes from the application of that act any legislative provisions that are necessary for national security. CBO has determined that section 9 of the bill, which authorizes certain electronic surveillance without a warrant due to an imminent threat of attack, falls under that exclusion; we have not reviewed it for intergovernmental mandates.
One of the other provisions of the bill contains an intergovernmental mandate, as defined in UMRA, because it would allow federal law enforcement officers to direct public institutions such as libraries to provide information. Because data about the number of public entities currently complying with similar requests and the costs of that compliance are classified, CBO cannot estimate the total costs state and local governments would incur to comply with this mandate. Based on information from a recent survey of public libraries, however, CBO estimates that the number of requests would probably be small and that the total costs to those entities would be well below the annual threshold established in UMRA ($64 million in 2006, adjusted annually for inflation).
Estimated impacts on the private sector: Section 4 of UMRA excludes from the application of that act any legislative provisions that are necessary for national security. CBO has determined that section 9 of the bill, which authorizes certain electronic surveillance without a warrant due to imminent threat of attack, falls under that exclusion and has not reviewed it for private-sector mandates.
H.R. 5825 contains a private-sector mandate, as defined in UMRA, because it would require certain entities to assist the government with electronic surveillance. CBO has no basis for estimating the costs of the mandate or whether those costs would exceed the annual threshold established by UMRA for private-sector mandates ($128 million in 2006, adjusted annually for inflation).
H.R. 5825 would authorize the Attorney General, after obtaining the certification required under the bill, to direct a person to immediately provide the government with all information, facilities, and assistance necessary to conduct electronic surveillance and to acquire foreign intelligence. Under current law, the Attorney General may direct a `common carrier' to provide such assistance with electronic surveillance. This bill would expand the scope of entities that must comply with the government's orders in such cases. Because CBO has no information about how often such entities would be directed to provide assistance or the costs associated with providing assistance, CBO has no basis for estimating the costs of this mandate. The bill also would authorize the government to compensate, at the prevailing rate, a person for providing such information, facilities, or assistance.
Previous CBO estimate: On September 25, 2006, CBO transmitted a cost estimate for H.R. 5825, as ordered reported by the House Committee on the Judiciary on September 20, 2006. The language of the two versions of the bill is similar. CBO cannot estimate the federal budgetary impact of implementing either version of H.R. 5825 because we cannot predict how the volume or type of surveillance would change under either version.
The House Judiciary version includes an intergovernmental and private-sector mandate that is not included in the Intelligence Committee's bill. That provision would provide protection from a cause of action for any person providing information, facilities, or assistance as well as conducting physical searches in accordance with a directive from the Attorney General under the bill.
Estimate prepared by: Federal Costs: Jason Wheelock. Impact on State, Local, and Tribal Governments: Melissa Merrell. Impact on the Private Sector: Victoria Liu.
Estimate approved by: Robert A. Sunshine, Assistant Director for Budget Analysis.
| TABLE OF CONTENTS |
| TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES |
| Sec. 101. Definitions. |
| * * * * * * * |
| Sec. 112. Authorization following a terrorist attack upon the United States. |
| Sec. 113. Authorization due to imminent threat. |
* * * * * * *
[ or ][<-Struck out]* * * * * * *
* * * * * * *
[ (f) `Electronic surveillance' means-- ][<-Struck out][ (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; ][<-Struck out][ (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code; ][<-Struck out][ (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or ][<-Struck out][ (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. ][<-Struck out]* * * * * * *
[ ; and ][<-Struck out] .[ (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a), procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person. ][<-Struck out]* * * * * * *
[ (l) `Wire communication' means any communications while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications. ][<-Struck out]* * * * * * *
SEC. 102. (a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
[ transmitted by means of communications used exclusively between or among foreign powers, as defined in section 101(a) (1), (2), or (3); or ][<-Struck out] of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a foreign power, as defined in section 101(b)(1); or[ (B) there is no substantial likelihood that the surveillance will acquire the contents of any communications to which a United States person is a party; and ][<-Struck out][ (C) ][<-Struck out] (D) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h); and* * * * * * *
[ sections 101(h)(4) and ][<-Struck out] section 104; or* * * * * * *
[ (4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to-- ][<-Struck out][ (A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and ][<-Struck out][ (B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain. ][<-Struck out][ (b) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 103, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person. ][<-Struck out]* * * * * * *
SEC. 104. (a) Each application for an order approving electronic surveillance under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 103. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this title. It shall include--
* * * * * * *
[ (6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; ][<-Struck out][ (7) ][<-Struck out] (6) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official [Struck out->][ or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate ][<-Struck out] designated by the President to authorize electronic surveillance for foreign intelligence purposes--* * * * * * *
[ (D) that designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and ][<-Struck out][ (E) including a statement of the basis for the certification that-- ][<-Struck out][ (i) the information sought is the type of foreign intelligence information designated; and ][<-Struck out][ (ii) such information cannot reasonably be obtained by normal investigative techniques; ][<-Struck out][ (8) a statement of the means by which the surveillance will be effected and ][<-Struck out] (7) a statement whether physical entry is required to effect the surveillance; and[ (9) a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; ][<-Struck out][ (10) ][<-Struck out] (8) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this title should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter [Struck out->][ ; and ][<-Struck out] .[ (11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device. ][<-Struck out][ (b) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the application need not contain the information required by paragraphs (6), (7)(E), (8), and (11) of subsection (a), but shall state whether physical entry is required to effect the surveillance and shall contain such information about the surveillance techniques and communications or other information concerning United States persons likely to be obtained as may be necessary to assess the proposed minimization procedures. ][<-Struck out][ (c) ][<-Struck out] (b) The Attorney General may require any other affidavit or certification from any other officer in connection with the application.[ (d) ][<-Struck out] (c) The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 105.[ (e) ][<-Struck out] (d)(1)(A) * * ** * * * * * *
SEC. 105. (a) Upon an application made pursuant to section 104, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that--
[ (1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information; ][<-Struck out][ (2) ][<-Struck out] (1) the application has been made by a Federal officer and approved by the Attorney General;[ (3) ][<-Struck out] (2) on the basis of the facts submitted by the applicant there is probable cause to believe that--[ (4) ][<-Struck out] (3) the proposed minimization procedures meet the definition of minimization procedures under section 101(h); and[ (5) ][<-Struck out] (4) the application which has been filed contains all statements and certifications required by section 104 and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section [Struck out->][ 104(a)(7)(E) ][<-Struck out] 104(a)(6)(D) and any other information furnished under section [Struck out->][ 104(d) ][<-Struck out] 104(c).* * * * * * *
[ (C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance; ][<-Struck out][ (D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; ][<-Struck out][ (E) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; ][<-Struck out][ (F) whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization procedures shall apply to information subject to acquisition by each device. ][<-Struck out]* * * * * * *
[ (d) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the order used need not contain the information required by subparagraphs (C), (D), and (F) of subsection (c)(1), but shall generally describe the information sought, the communications or activities to be subjected to the surveillance, and the type of electronic surveillance involved, including whether physical entry is required. ][<-Struck out][ (e) ][<-Struck out] (d)(1) An order issued under this section may approve an electronic surveillance [Struck out->][ for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 101(a), (1), (2), or (3), for the period specified in the application or for one year, whichever is less, and (B) an order under this Act for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less. ][<-Struck out] for a period not to exceed one year.[ original order, except that (A) an extension of an order under this Act for a surveillance targeted against a foreign power, a defined in section 101(a) (5) or (6), or against a foreign power as defined in section 101(a)(4) that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this Act for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year. ][<-Struck out] original order for a period not to exceed one year.[ (f) Notwithstanding any other provision of this title, when the Attorney General reasonably determines that-- ][<-Struck out][ (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and ][<-Struck out][ (2) the factual basis for issuance of an order under this title to approve such surveillance exists; ][<-Struck out][ (g) ][<-Struck out] (f) Notwithstanding any other provision of this title, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to--* * * * * * *
[ (h) ][<-Struck out] (g) Certifications made by the Attorney General pursuant to section 102(a) and applications made and orders granted under this title shall be retained for a period of at least ten years from the date of the certification or application.[ (i) ][<-Struck out] (h) No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical [Struck out->][ assistance in accordance with a court order or request for emergency assistance under this Act for electronic surveillance or physical search. ][<-Struck out] assistance--SEC. 106. (a) * * *
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[ radio ][<-Struck out] communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the [Struck out->][ contents indicates ][<-Struck out] contents contain significant foreign intelligence information or indicate a threat of death or serious bodily harm to any person.[ 105(e) ][<-Struck out] 105(d) and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of--* * * * * * *
[ 104(a)(7)(B) ][<-Struck out] 104(a)(6)(B) or the entry of an order under section 105.* * * * * * *
SEC. 108. (a)(1) * * *
[ and ][<-Struck out][ 105(f) ][<-Struck out] 105(e) and the total number of subsequent orders approving or denying such electronic surveillance [Struck out->][ . ][<-Struck out] ; and* * * * * * *
SEC. 111. Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information [Struck out->][ for a period not to exceed fifteen calendar days following a declaration of war by the Congress. ][<-Struck out] for a period not to exceed 60 days following an armed attack against the territory of the United States if the President submits to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate notification of the authorization under this section.
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[ Act, or (B) ][<-Struck out] Act, (B) activities described in section 102(b) of this Act, or (C) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101(f) of this Act.* * * * * * *
[ for a period not to exceed 15 calendar days following a declaration of war by the Congress. ][<-Struck out] for a period not to exceed 60 days following an armed attack against the territory of the United States if the President submits to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate notification of the authorization under this section.* * * * * * *
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[ (f) ][<-Struck out] (g) As used in this section, the term `intelligence activities' includes covert actions as defined in section 503(e), and includes financial intelligence activities.* * * * * * *
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All nine Democratic Members of the House Permanent Select Committee on Intelligence support strong, modem, and lawful tools to fight terrorism. We want to intercept their communications, track their whereabouts, and disrupt their plans. We stand ready and willing to respond to any reasonable request from the Administration for additional legal tools for the National Security Agency (NSA). But we believe that how we use these tools is a measure of who we are as a nation--a yardstick by which the rest of the world will view our commitment to the values upon which this country was founded. Those who founded our country created a system of checks and balances and we believe their vision should be preserved. Congress should not give any President unchecked authority to eavesdrop on Americans.
The Foreign Intelligence Surveillance Act (FISA) is a modern, flexible statute that allows the government to conduct electronic surveillance on Americans. As the record in our Committee has made clear, FISA is a vital tool for the Federal Bureau of Investigation (FBI) and the NSA in their investigations of terrorism and espionage.
There is no evidence in the record of our Committee that FISA must be rewritten in favor of a new regime permitting broad warrantless surveillance of Americans. Yet H.R. 5825 does exactly that.
We have heard the claim that the law is `outmoded,' but FISA has been amended and modernized numerous times over the past 28 years, including most recently in the reauthorization of the USA PATRIOT Act in March. The Congressional Research Service (CRS) provided a report to this Committee showing that 51 separate provisions in twelve different bills have amended FISA--many of those in just the past five years.
Given that H.R. 5825 is intended to address concerns over the President's domestic surveillance program, it is stunning how little oversight this Committee has actually conducted and how little information we have about the program.
For months we have asked that Committee members meet with the NSA Inspector General, members of the Foreign Intelligence Surveillance Court, the Department of Justice (DOJ), the FBI, and the Central Intelligence Agency (CIA) to learn whether the program has helped stop any terrorist attacks. The Majority denied each of those requests. We have asked for a copy of the President's Authorization for the program and for other core documents. The Administration has refused to produce them. In June, the Ranking Member asked the Chairman to join her in sending a letter to the NSA Inspector General asking to review his seven reports on the program. The Chairman did not agree to send that letter.
We have received occasional briefings from NSA officials, but none of these briefings have been on the record, on the purported theory that we could not find a single cleared stenographer. This problem persisted despite the fact that thousands of Executive Branch officials have been briefed into this program.
The Chairman committed in public to hold hearings with Administration officials to help determine what changes to FISA, if any, were needed to accommodate the President's program. We had hoped to have Attorney General Gonzales testify. But no such hearings were held. In fact, the Committee never even extended an invitation to the Attorney General.
H.R. 5825 is a dangerously broad bill that would turn FISA on its head by making warrantless surveillance the rule rather than the exception. It does so by altering the definition of key terms within FISA that govern what forms of surveillance require a warrant and by carving out giant loopholes that give the Administration broad powers to conduct all types of surveillance without a warrant.
H.R. 5825 proposes sweeping alterations to the definition of `electronic surveillance' that would drastically shrink the universe of communications for which a warrant is required. It radically expands the definition of `agent of a foreign power.' It seriously erodes the protections against dissemination of information collected on U.S. persons. And it offers a new definition of `surveillance device' that would allow the government to conduct unregulated data retention and mining operations on all the information collected from the vast warrantless surveillance that this bill authorizes.
In other sections, H.R. 5825 grants the Administration the authority, under poorly defined circumstances, to conduct surveillance without a warrant. The bill grants the government the power to conduct unlimited surveillance in the event of an `armed attack' and in the event of a `terrorist attack.' Though neither of these terms is defined anywhere in the law. Therefore, these sweeping exceptions give the Executive Branch carte blanche authority to conduct surveillance as it sees fit.
Further, the Majority offered an Amendment in the Nature of a Substitute to H.R. 5825 to create yet another loophole that would allow the same sort of warrantless surveillance when the United States is facing an `imminent threat of attack.' Here, again, the terms are so loosely defined that the potential for abusive interpretation threatens to swallow the statute whole.
In sum, H.R. 5825's vague definitions and broad loopholes allow the Executive Branch to conduct electronic surveillance of telephone calls and e-mail in the United States without court orders and without meaningful oversight.
The Minority offered several amendments to address these concerns; sadly, all were rejected during markup on a party-line vote.
First, Representatives Harman and Boswell offered an amendment that would have substituted H.R. 5825 with H.R. 5371, the LISTEN Act (Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA). The strength of the LISTEN Act is that it only fixes what is broken.
This amendment would have made clear that FISA is the exclusive means by which the Executive Branch may conduct electronic surveillance of Americans for intelligence purposes. It would have reiterated that the Authorization for the Use of Military Force (AUMF) did not authorize the President's domestic surveillance program; it did not repeal FISA. It would have invited the President and the Attorney General to tell us what is wrong with the FISA process so that we can fix it. It would have also required the President to identify any additional resources needed to help the NSA and the DOJ fight the war on terror using FISA authorities. And it would have pledged that Congress would fund additional attorneys, analysts and information technology upgrades to make FISA more efficient.
An amendment offered by Representatives Eshoo and Holt would have altered FISA's definition of `electronic surveillance' to make the statute technology neutral. Making this fix would require changing only a few words in the statute to eliminate the distinction between wire and radio communications. Unlike H.R. 5825, the tailored fix offered by Representatives Eshoo and Holt would have updated the law without gutting FISA.
An amendment offered by Representatives Holt and Ruppersberger would have reaffirmed the principle that FISA is the exclusive means for conducting electronic surveillance in the United States. This amendment would have ensured that the President would be held to the rules--even the permissive rules of H.R. 5825. As it stands today, if H.R. 5825 passes, the President can avail himself of its loose rules when he wishes or circumvent those loose rules if he so chooses.
Representative Reyes offered an amendment finding that the AUMF does not constitute legal authorization for electronic surveillance outside of FISA. We do not believe that any Member's vote on the AUMF was a vote for warrantless surveillance of law-abiding citizens in contravention of the Fourth Amendment of the Constitution.
Representative Hastings offered an amendment that would have clarified existing law by reaffirming that FISA does not require a warrant to monitor telephone calls where all participants are located outside the United States. This amendment would have allowed free surveillance of foreign-to-foreign communications but would have left the other critical FISA provisions intact. There is no reasonable explanation why the Majority would oppose this provision.
Protecting America from terrorism is our highest duty. We need to get serious about the task. It is election season, and a debate on surveillance brings political benefits to some. But that is a terrible reason to legislate. We do not want to suspend our 217-year-old Constitution, whether for political reasons or for no reason at all.
Jane Harman.
Ranking Democrat
Silvestre Reyes.
Bud Cramer.
Rush Holt.
John F. Tierney.
Alcee L. Hastings.
Leonard L. Boswell.
Anna Eshoo.
C.A. Dutch Ruppersberger.
I have joined my Democratic colleagues in signing the minority views as they reflect the `mark-up' session's events and general overview of the situation surrounding the meeting. It is instructive, I believe, to make some brief additional observations.
The Administration has yet to articulate on record specific justifications for arguing that executive powers broader than those within the Foreign Intelligence Surveillance Act would be necessary in order to intercept communications under the so-called `President's Program.' As more than one witness pointed out in the course of related hearings, the President and his Administration assert only broadly that there may be some issue with respect to complying in a timely manner with emergency provisions for seeking a warrant. Any problems in this regard seem self-induced as a result of bureaucratic processes established within the originating agency or the Department of Justice, and not from any delay in the Foreign Intelligence Surveillance Court. Additional staff or revised procedures could address the matter without statutory amendment. Nevertheless, the LISTEN Act, proposed by Representative Harman and co-sponsored by 64 of other members, including the minority HPSCI members, would make clear Congress' willingness to make additional resources available as requested.
There was some assertion that agencies were interpreting the law to indicate that they felt certain foreign-to-foreign communications routed in any way through domestic infrastructure might necessitate a warrant, thus burdening the process. Experts have indicated that a clear reading of existing statutory language would obviate such concerns as it addresses intercepts of communications from and to foreign persons. A simple clarification of the statute (offered as an amendment by Representative Hastings of Florida) could resolve any lingering doubts, and Senator Feinstein's bill even goes so far as to clarify it statutorily.
A wholesale revision of the FISA, especially one so radical as that proposed in Representative Wilson's bill, is not necessary to address the only concerns of record articulated by the Administration. It would be reasonable for the public to then wonder whether the Administration is being forthcoming in its real purposes for having surreptitiously conducted the `President's Program' for so long or for seeking new legislation. Is there more to the Executive's intentions under such broad authority, or, as some have speculated, are those within the Administration who have chafed under what they perceived as a loss of executive authority under FISA simply asserting a point here? With respect to the latter, we should note that the United States Supreme Court has recently made it abundantly clear that when Congress has spoken by law on a matter within its purview, the Executive is not at liberty simply to controvert Congress' intentions unilaterally. Congress should not be an accomplice to a diminution of its rightful authority by passing unnecessarily broad legislation absent specific evidence of its necessity for the nation's security. That burden has not been met in this instance. The Executive, under FISA, has ample authority to intercept terrorists' communications as appropriate to protect the country, and a Congress willing--as shown over time and most recently since 9/11 via the PATRIOT Act--to amend FISA if necessary to resolve clearly articulated needs.
JOHN TIERNEY.
