19–006 

112TH CONGRESS REPT. 112–645 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012 

AUGUST 2, 2012.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS AND ADDITIONAL VIEWS 

[To accompany H.R. 5949] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5949) to extend the FISA Amendments Act of 2008 for five 

years, having considered the same, reports favorably thereon with 

an amendment and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 9 

New Budget Authority and Tax Expenditures ...................................................... 10 

Congressional Budget Office Cost Estimate .......................................................... 10 

Performance Goals and Objectives ......................................................................... 11 

Advisory on Earmarks ............................................................................................. 11 

Section-by-Section Analysis .................................................................................... 12 

Changes in Existing Law Made by the Bill, as Reported ..................................... 12 

Dissenting Views ..................................................................................................... 13 

Additional Views ...................................................................................................... 21 


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The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘FISA Amendments Act Reauthorization Act of 

2012’’. 

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

(a) EXTENSION.—Section 403(b) of the FISA Amendments Act of 2008 (Public Law 

110–261; 122 Stat. 2474) is amended— 

(1) in paragraph (1), by striking ‘‘December 31, 2012’’ and inserting ‘‘December 31, 2017’’; and 

(2) in paragraph (2) in the material preceding subparagraph (A), by striking 

‘‘December 31, 2012’’ and inserting ‘‘December 31, 2017’’. 

(b) CONFORMING AMENDMENT.—The heading of section 404(b)(1) of the FISA 

Amendments Act of 2008 (Public Law 110–261; 122 Stat. 2476) is amended by striking ‘‘DECEMBER 31, 2012’’ and inserting ‘‘DECEMBER 31, 2017’’. 

Purpose and Summary 

The purpose of this bill is to extend for 5 years the FISA Amendments Act of 2008. 

Background and Need for the Legislation 

In 2006 and 2007, then-Director of National Intelligence Admiral 

Mike McConnell explained to Congress that due to recent FISA 

court decisions, the government was forced to devote substantial 

resources to obtaining court approvals—based on a showing of 

probable cause—to conduct surveillance against terrorists located 

overseas in some circumstances. This is contrary to what Congress 

intended when it enacted the Foreign Intelligence Surveillance Act 

(FISA) in 1978 and had come about due to changes in telecommunication technology. Admiral McConnell stated that the Intelligence Community was not collecting approximately two-thirds 

of the foreign intelligence information that it collected prior to legal 

interpretations that required the government to obtain individualized FISA court orders for overseas surveillance. 

On July 10, 2008, President Bush signed into law the FISA 

Amendments Act of 2008, which passed with a bipartisan majority 

of Congress and broad support from the intelligence community. 

The Act allows intelligence professionals to more quickly and effectively monitor terrorist communications, while protecting the civil 

liberties of Americans. Among other things, the law accomplishes 

the following: 

• Ensures that the intelligence community has the tools it 

needs to determine who terrorists are communicating with, 

what they are saying and what they may be planning. 

• Provides critical authorities that allow the intelligence community to acquire foreign intelligence information by targeting foreign persons reasonably believed to be outside the 

United States. 

• Preserves and provides new civil liberties protections for 

Americans. 


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• Requires court orders to target Americans for foreign intelligence surveillance, no matter where they are, and requires 

court review of the procedures used to protect information 

about Americans. 

Specifically, the new law authorizes the targeting of 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 Act permits the Attorney General and Director of National 

Intelligence to obtain an annual certification from the Foreign Intelligence Surveillance Court (FISC) to target foreign persons reasonably believed to be located outside the U.S. to acquire foreign 

intelligence information. Under exigent circumstances, the Attorney General and Director of National Intelligence 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. 

The Act strengthens 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 Act expands congressional oversight with a semi-annual report to Congress from the Administration on certifications or orders 

obtained under the Act, compliance reviews, and incidents of noncompliance. The Act amends an existing reporting requirement 

that requires 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 expands the amount of background and 

supporting material that the Committee will 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. 

At a hearing of the Subcommittee on Crime, Terrorism, and 

Homeland Security, Mr. Kenneth Wainstein, former head of the 

National Security Division of the Justice Department, testified 

that: 

In crafting this law, however, Congress recognized that 

it had to balance the need for a judicial review process for 

domestic surveillance against the government’s need to 

freely conduct surveillance overseas. It accomplished that 

objective by clearly distinguishing between surveillances 

directed against persons located within the United 

States—where constitutional protections apply—and those 

directed against persons outside the United States, where 

the fourth amendment does not apply. It then imposed the 

court approval requirement on surveillances directed 

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telligence Community free to surveil overseas targets without the undue burden of court process. 

With the FAA set to expire at the end of this year, the Administration has strongly urged Congress to reauthorize the legislation. 

In a recent letter to Congress, both the Attorney General and the 

DNI explain that the FAA ‘‘has proven to be an extremely valuable 

authority in protecting our nation from terrorism and other national security threats.’’ They represent that the oversight of its implementation has been comprehensive, citing the findings of their 

semi-annual assessments that agencies have ‘‘continued to implement the procedures and follow the guidelines in a manner that reflects a focused and concerted effort by agency personnel to comply 

with the [FAA] requirements’’ and that agency personnel ‘‘are appropriately focused on directing their efforts at non-United States 

persons reasonably believed to be located outside the United 

States.’’ And importantly, they conclude that the reauthorization of 

the FAA ‘‘is the top legislative priority of the Intelligence Community.’’ 

In support of the Administration’s call for reauthorization, Mr. 

Wainstein asked Congress to focus on the three considerations: (1) 

the vital importance of the FAA surveillance authority to our 

counterterrorism efforts; (2) the extreme care with which Members 

of Congress considered, crafted and limited that authority when 

they passed the FAA 4 years ago; and (3) the representations of the 

Executive Branch that that authority has been implemented to 

great effect and with full compliance with the law and the Constitution. 

America and its allies face continuous national security threats 

from foreign nations and terrorist organizations. Foreign agents 

from rival nations continue to spy on the United States. And al 

Qaeda and other terrorist networks continue to plot attacks against 

America. America’s security cannot be guaranteed at the border. 

Congress must ensure that our national security agencies are able 

to gather foreign intelligence information from foreign terrorists 

and nation-states so that we can stop threats before they reach our 

shores. The FISA Amendments Act has proven successful in achieving this goal and must be extended for an additional 5 years. 

Hearings 

The Committee’s Subcommittee on Crime, Terrorism and Homeland Security held 1 day of hearings on H.R. 5949, on May 31, 

2012. Testimony was received from (1) Mr. Keneith L. Wainstein, 

Partner, Cadwalader, Wickersham & Taft LLP, and former Assistant Attorney General for the National Security Division of the Department of Justice, and the former Homeland Security Advisor to 

the President; (2) Mr. Marc Rotenberg, President, Electronic Privacy Information Center (EPIC); (3) Jameel Jaffer, Director, Center 

for Democracy, American Civil Liberties Union (ACLU). 

Committee Consideration 

On June 19, 2012, the Committee on the Judiciary met in open 

session and ordered the bill H.R. 5949 favorably reported, without 

amendment, by recorded vote, a quorum being present. 


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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. 

5949. 

1. An amendment by Mr. Conyers to reauthorize the FISA 

Amendment Act to 2015. Defeated 12–12. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................ X 

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte ......................................................................................... X 

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa ..................................................................................................

Mr. Pence ............................................................................................... X 

Mr. Forbes .............................................................................................. X 

Mr. King .................................................................................................

Mr. Franks .............................................................................................. X 

Mr. Gohmert ........................................................................................... X 

Mr. Jordan ..............................................................................................

Mr. Poe ................................................................................................... X 

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy ..............................................................................................

Mr. Ross .................................................................................................

Ms. Adams .............................................................................................

Mr. Quayle ..............................................................................................

Mr. Amodei .............................................................................................

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................ X 

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................ X 

Ms. Jackson Lee .....................................................................................

Ms. Waters .............................................................................................

Mr. Cohen ...............................................................................................

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu .................................................................................................. X 

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis .................................................................................................

Total ..................................................................................... 12 12 


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2. An amendment by Mr. Nadler to require the Attorney General 

to make publicly available a declassified summary of every decision, order, or opinion of the Foreign Intelligence Surveillance 

Court or the Foreign Intelligence Surveillance Court of Review that 

includes a significant construction or interpretation of Section 702 

of the Foreign Intelligence Surveillance Act of 1978. Defeated, 14– 

17. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................ X 

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte ......................................................................................... X 

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa .................................................................................................. X 

Mr. Pence ............................................................................................... X 

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan .............................................................................................. X 

Mr. Poe ................................................................................................... X 

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle ..............................................................................................

Mr. Amodei .............................................................................................

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................ X 

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................ X 

Ms. Jackson Lee .....................................................................................

Ms. Waters ............................................................................................. X 

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu .................................................................................................. X 

Mr. Deutch .............................................................................................

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 14 17 


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3. An Amendment by Mr. Scott to amend Section 702(l) of the 

Foreign Intelligence Surveillance Act of 2008 to require that each 

assessment or review under paragraph 1, 2 or 3 shall be published 

in unclassified form but may have a classified annex. Defeated, 10– 

19. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................ X 

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte ......................................................................................... X 

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa .................................................................................................. X 

Mr. Pence ............................................................................................... X 

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan .............................................................................................. X 

Mr. Poe ................................................................................................... X 

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle ..............................................................................................

Mr. Amodei .............................................................................................

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................ X 

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu .................................................................................................. X 

Mr. Deutch .............................................................................................

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis .................................................................................................

Total ..................................................................................... 10 19 

4. An amendment by Ms. Jackson Lee to require a report by the 

Inspector General of the Department of Justice and the Inspector 


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General of that Intelligence Community on the implementation of 

the amendments made by the FISA Amendments Act of 2008. Defeated, 11–20. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................ X 

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte ......................................................................................... X 

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa .................................................................................................. X 

Mr. Pence ............................................................................................... X 

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan .............................................................................................. X 

Mr. Poe ................................................................................................... X 

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle ..............................................................................................

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................ X 

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu .................................................................................................. X 

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis .................................................................................................

Total ..................................................................................... 11 20 

5. On Reporting the bill favorably to the House. Passed 23–11. 


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ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................ X 

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte ......................................................................................... X 

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa .................................................................................................. X 

Mr. Pence ............................................................................................... X 

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ........................................................................................... X 

Mr. Jordan .............................................................................................. X 

Mr. Poe ................................................................................................... X 

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle ..............................................................................................

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................ X 

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................ X 

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters ............................................................................................. X 

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu .................................................................................................. X 

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis .................................................................................................

Total ..................................................................................... 23 11 

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. 


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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. 5949, 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, July 2, 2012. 

Hon. LAMAR SMITH, 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. 5949, the ‘‘FISA Amendments Act Reauthorization Act of 2012.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz, who 

can be reached at 226-2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

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

As ordered reported by the House Committee on the Judiciary 

on June 19, 2012. 

H.R. 5949 would extend the authority of the Federal Government 

to conduct surveillance pursuant to the FISA Amendments Act of 

2008 (Public Law 110-261). Because CBO does not provide cost estimates for classified programs, this estimate addresses only the 

budgetary effects on unclassified programs affected by the bill. On 

that basis, CBO estimates that implementing H.R. 5949 would 

have no significant cost to the Federal Government. Enacting the 

bill could affect direct spending and revenues; therefore, pay-asyou-go procedures apply. However, CBO estimates that any effects 

would be insignificant for each year. 

The FISA Amendments Act of 2008 clarified the authority of the 

Federal Government to surveil and intercept communications of 

certain persons located outside the United States. H.R. 5949 would 

extend the provisions of that act by five years (otherwise they expire after December 31, 2012). As a result, the government might 

be able to pursue cases that it otherwise would not be able to prosVerDate Mar 15 2010 00:08 Aug 03, 2012 Jkt 019006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR645P1.XXX HR645P1

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ecute. CBO expects that H.R. 5949 would apply to a relatively 

small number of additional offenders, however, so any increase in 

costs for law enforcement, court proceedings, or prison operations 

would not be significant. Any such costs would be subject to the 

availability of appropriated funds. 

Because those prosecuted and convicted under H.R. 5949 could 

be subject to criminal fines, the Federal Government might collect 

additional fines if the legislation is enacted. Criminal fines are deposited as revenues in the Crime Victims Fund and later spent. 

CBO expects that any additional revenues and direct spending 

would not be significant because of the relatively small number of 

cases likely to be affected. 

The bill would impose both private-sector and intergovernmental 

mandates by extending an existing mandate that would limit civil 

actions and require providers of communication services to provide 

information. There is little information about the prevalence of 

electronic surveillance in those cases or the scope or size of potential awards from such cases. Consequently, CBO cannot determine 

whether the costs of those mandates would exceed the annual 

threshold established by the Unfunded Mandates Reform Act 

(UMRA) for private-sector mandates ($146 million in 2012, adjusted annually for inflation). 

However, few public entities receive requests for such information, and the costs on them would be small. The bill also would extend an existing preemption on State and local governments regarding legal rights of action. CBO estimates that the costs to public entities of all the intergovernmental mandates in the bill would 

be small and well below the annual threshold established in UMRA 

($73 million in 2012, adjusted annually for inflation). 

On May 18, 2011, CBO transmitted a cost estimate for H.R. 

1800, the FISA Sunsets Reauthorization Act of 2011, as ordered reported by the House Committee on the Judiciary on May 12, 2011. 

That bill would extend certain powers of the Federal Government 

to investigate terrorist acts. CBO estimated that implementing 

H.R. 1800 would have no significant cost to the Federal Government. 

The CBO staff contacts for this estimate are Mark Grabowicz 

and Jason Wheelock (for Federal costs), J’nell L. Blanco (for the impact on State and local governments), and Elizabeth Bass (for the 

impact on the private sector). The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

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. 5949, makes improvements to the criminal code that will help law enforcement officials pursue those who steal and traffic pre-retail medical cargo. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 5949 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. 


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Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short Title 

This section cites the short title of the bill as the ‘‘The FISA 

Amendment Act Reauthorization Act of 2012.’’ 

Section 2. Extends the Authorization for Five Years. 

This section changes the expiration date of the FISA Amendments Act of 2008 to from December 31, 2012 to December 31, 

2017. 

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): 

FISA AMENDMENTS ACT OF 2008 

* * * * * * * 

TITLE IV—OTHER PROVISIONS 

* * * * * * * 

SEC. 403. REPEALS. 

(a) * * * 

(b) FISA AMENDMENTS ACT OF 2008.— 

(1) IN GENERAL.—Except as provided in section 404, effective øDecember 31, 2012¿ December 31, 2017, title VII of the 

Foreign Intelligence Surveillance Act of 1978, as amended by 

section 101(a), is repealed. 

(2) TECHNICAL AND CONFORMING AMENDMENTS.—Effective 

øDecember 31, 2012¿ December 31, 2017— 

(A) * * * 

* * * * * * * 

SEC. 404. TRANSITION PROCEDURES. 

(a) * * * 

(b) TRANSITION PROCEDURES FOR FISA AMENDMENTS ACT OF

2008 PROVISIONS.— 

(1) ORDERS IN EFFECT ON øDECEMBER 31, 2012¿ DECEMBER

31, 2017.—Notwithstanding any other provision of this Act, any 

amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the 

Foreign Intelligence Surveillance Act of 1978, as amended by 


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1Pub. L. No. 110–261, 122 Stat. 2435 (2008). 

2Letter to Representatives F. James Sensenbrenner, Jr. (R–WI), Chairman, & Robert C. 

‘‘Bobby’’ Scott (D–VA), Ranking Member, H. Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, from representatives of the American-Arab Anti-Discrimination Committee, the American Association of Law Libraries, the American Civil Liberties 

Union, the American Library Association, the Association of Research Libraries, the Brennan 

Center for Justice, the Center for Democracy & Technology, the Council on American-Islamic 

Relations, the Cyber Privacy Project, the Defending Dissent Foundation, Demand Progress, the 

Electronic Frontier Foundation, the Government Accountability Project, the Liberty Coalition, 

the National Association of Criminal Defense Lawyers, and OpenTheGovernment.org, (June 11, 

2012) (on file with H. Comm. on the Judiciary Democratic Staff). 

section 101(a), shall continue in effect until the date of the expiration of such order, authorization, or directive. 

* * * * * * * 

Dissenting Views 

INTRODUCTION

H.R. 5949, the ‘‘FISA Amendments Act Reauthorization Act of 

2012,’’ extends the expiration date of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FAA or Act),1

which authorizes the Federal Government to conduct electronic 

surveillance of persons reasonably believed to be outside the United 

States, from December 31, 2012 to June 1, 2017. 

We strongly oppose this bill because it effectuates an unwarranted long-term extension of a controversial law that may have 

been used to violate the privacy interests of American citizens. To 

shed light on the scope of these alleged violations, we offered at the 

Committee’s markup of H.R. 5949 a series of amendments that 

would have required certain information to be disclosed to the public and allowed Congress to exercise more effective oversight of the 

FAA. These carefully crafted amendments would not have compromised our national security or the integrity of the Act’s underlying programs. Unfortunately, none of these amendments were 

adopted, and the Committee thereby missed an opportunity to improve a highly controversial law. 

H.R. 5949 is opposed by the American-Arab Anti-Discrimination 

Committee, the American Association of Law Libraries, the American Civil Liberties Union, the American Library Association, the 

Association of Research Libraries, the Brennan Center for Justice, 

the Center for Democracy & Technology, the Council on AmericanIslamic Relations, the Cyber Privacy Project, the Defending Dissent 

Foundation, Demand Progress, the Electronic Frontier Foundation, 

the Government Accountability Project, the Liberty Coalition, the 

National Association of Criminal Defense Lawyers, and 

OpenTheGovernment.org.2

For these reasons, and those described below, we must respectfully dissent. 

DESCRIPTION AND BACKGROUND

DESCRIPTION

H.R. 5949 extends the expiration date of the FAA from December 

31, 2012 to June 1, 2017. 


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3 50 U.S.C. §§ 1801 et seq. 4See 50 U.S.C. § 1801(f)(1) (limiting the definition of ‘‘electronic surveillance’’ to instances ‘‘in 

which a person has a reasonable expectation of privacy and a warrant would be required for 

law enforcement purposes’’). 5 50 U.S.C. § 1803(a)(1). 

6 Id. § 1824(a). 7 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y. TIMES, Dec. 16, 2005, at 1, available at http://www.nytimes.com/2005/12/16/politics/16 

program.html?lr=1. 8 U.S. Dept. of Justice, Legal Authorities Supporting the Activities of the National Security 

Agency Described by the President, at 5, 17, Jan. 19, 2006, available at http://www.usdoj.gov/ 

opa/whitepaperonnsalegalauthorities.pdf. 

BACKGROUND

I. The Foreign Intelligence Surveillance Act 

In 1978, the Foreign Intelligence Surveillance Act (‘‘FISA’’) was 

enacted to establish a statutory framework for gathering ‘‘foreign 

intelligence information’’ from U.S. persons.3 FISA authorizes special court orders for four purposes: electronic surveillance, physical 

searches, the installation and use of pen registers and trap and 

trace devices, and demands for the production of physical items. Although FISA is designed for intelligence gathering and not for the 

collection of criminal evidence, the law applies to activities to 

which a Fourth Amendment warrant requirement would apply if 

they were conducted as part of a criminal investigation.4

Most commonly, authorization for a wiretap or physical search 

under FISA is obtained by application to the Foreign Intelligence 

Surveillance Court (‘‘FISC’’ or the ‘‘FISA court’’). The FISC is composed of eleven Federal district court judges designated by the 

Chief Justice of the United States.5 In most circumstances, the 

FISC will approve an application to conduct electronic surveillance 

of a U.S. person if there is probable cause to believe that the target 

is the agent of a foreign power. In exigent circumstances, FISA also 

allows the government to collect foreign intelligence information 

without FISC supervision for a limited period of time.6

II. Events Leading to the Enactment of the FAA 

Preceding the enactment of the FAA in 2008 were two programs 

aimed at intercepting overseas communications: the warrantless 

wiretapping program, which was conducted without congressional 

authorization from 2001 to 2007, and the now-repealed Protect 

America Act. 

A. Warrantless Wiretapping (2001–2007) 

In 2005, The New York Times reported that the Federal Government had ‘‘monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people in the United States without warrants.’’ 7 Subsequently, President George W. Bush acknowledged that he had authorized the National Security Agency (NSA) to ‘‘intercept international communications into and out of the United States’’ by ‘‘persons linked to 

al Qaeda or related terrorist organizations,’’ based solely on ‘‘his 

constitutional authority to conduct warrantless wartime electronic 

surveillance of the enemy.’’ 8

The House and Senate intelligence committees were not informed 

of the full scope of this program until early 2006. As the Senate 

Select Committee on Intelligence concluded: 


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9S. Rep. No. 110–209, at 13 (2007). 

10Letter from Attorney General Alberto Gonzales to the Senate Judiciary Committee (Jan. 17, 

2007). 11The White House, ‘‘President’s Radio Address’’ (broadcast July 28, 2007). 12Protect America Act of 2007, Pub. L. No. 110–55 (2007) (expired). 13 50 U.S.C. § 1805A (expired). 14For example, FISA restricts the dissemination of information about U.S. persons acquired 

from ‘‘electronic surveillance.’’ By excluding surveillance activities from the definition of ‘‘electronic surveillance,’’ the PAA also rolled back these protections. 15 50 U.S.C. § 1805B(a) (expired). 

The enormous secrecy surrounding the President’s Program had little to do with the operational sensitivity of the 

collection methods. It was widely known that the NSA was 

surveilling terrorists. What was ‘‘sensitive’’ was that the 

surveillance was not lawful: it violated a statute passed by 

Congress and signed into law by the President.9

On January 17, 2007, Attorney General Alberto Gonzales stated 

to Congress that ‘‘any electronic surveillance that was occurring as 

part of the Terrorist Surveillance Program will now be conducted 

subject to the approval of the Foreign Intelligence Surveillance 

Court.’’ 10 Several groups filed suit alleging statutory and constitutional violations by the telecommunications companies that participated in the program, and the question of retroactive immunity for 

these companies became central to debate about what statutory authority, if any, would replace the NSA program. 

B. The Protect America Act (2007–2008) 

On July 18, 2007, the Bush Administration announced that it 

had submitted a bill to Congress to amend FISA. President Bush 

explained that FISA was ‘‘badly out of date,’’ despite several recent 

revisions, and that the Act did not apply to new technologies like 

disposable cell phones or internet-based communications.11 Pressure from the Bush Administration interrupted negotiations on bipartisan legislation, and the Protect America Act (‘‘PAA’’) was 

signed into law on August 5, 2007.12

The PAA modified FISA’s definition of ‘‘electronic surveillance’’ to 

exclude from court oversight any surveillance ‘‘directed at a person 

reasonably believed to be outside of the United States.’’ 13 This 

change was put forward as means to explicitly exclude from FISA 

purely foreign communications routed through United States telecommunications networks. In practice, however, the mechanism 

stripped away many protections for U.S. persons as well.14

The PAA also set up a new procedure under which the Attorney 

General or the Director of National Intelligence, without court 

oversight, could obtain foreign intelligence information ‘‘concerning’’ persons outside the United States. The Administration 

simply certified to itself that the acquisition did not fit the new definition of ‘‘electronic surveillance,’’ and that a ‘‘significant purpose’’ 

of the acquisition was to obtain foreign intelligence.15 These certifications were not subject to judicial review. The word ‘‘concerning’’ 

was read to allow warrantless surveillance of American citizens, including members of the U.S. armed forces, both at home and 

abroad. 

In effect, the PAA compelled telecommunications companies to 

allow the government immediate access to their facilities for data 

collection. Any entity that refused ran the risk of a contempt citaVerDate Mar 15 2010 00:08 Aug 03, 2012 Jkt 019006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR645P1.XXX HR645P1

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16 Id. §§ 1805B(e) and (g) (expired). 17 Id. § 1805B(l) (expired). 18Pub. L. No. 110–55 § 6(c) (2007). 19 50 U.S.C. § 1881a. 20 Id. § 1881b. 21 Id. § 1881c. This provision is used when section 1881b is unavailable—i.e., because acquisition takes place outside the United States, or because the action involves something other than 

electronic surveillance, like a physical search. 22Pub. L. 110–261 § 403(b) (2008). 23Letter to Speaker John Boehner, Speaker, U.S. House of Representatives et al. from James 

R. Clapper, Director of National Intelligence (Mar. 26, 2012). 24 50 U.S.C. § 1881a. 25 Id. § 1881a(b). 

tion from the FISC.16 The PAA provided prospective immunity for 

entities that cooperated with the government, but did not address 

the question of retroactive immunity.17 Because of its controversial 

nature, Congress included a 180-day sunset of the PAA.18 The statute expired on February 17, 2008, and was explicitly repealed by 

the FISA Amendments Act. 

III. Overview of the FAA 

Signed into law on July 10, 2008, the FAA added title VII to 

FISA. This new title sets forth procedures for the acquisition of foreign intelligence information from overseas targets. Title VII applies to three types of intelligence collection: (1) targeting non-U.S. 

persons who are reasonably believed to be outside the United 

States;19 (2) gathering electronic communications or other data in 

the United States with respect to U.S. persons who are outside the 

United States;20 and (3) ‘‘other acquisitions’’ targeting U.S. persons 

who are outside the United States.21

All three of these authorities are scheduled to sunset on December 31, 2012.22 The Obama Administration has asked that Congress reauthorize these authorities through June 1, 2017.23 In 

closed session, on May 22, 2012, the Senate Select Committee on 

Intelligence approved S. 3276, the ‘‘FAA Sunsets Extension Act of 

2012,’’ to extend title VII for 5 years. H.R. 5949 is substantively 

identical to S. 3276. 

Of the three authorities described in title VII, section 702 is the 

most controversial. This provision authorizes the Attorney General 

and the Director of National Intelligence—for up to 1 year—‘‘to acquire foreign intelligence information’’ from ‘‘persons reasonably believed to be located outside the United States.’’ 24 The FAA explicitly limits this power in several key aspects: 

• The government may not intentionally target any person 

known at the time of acquisition to be in the United States; 

• The government may not engage in ‘‘reverse targeting,’’ i.e., 

targeting a non-U.S. person outside the United States for the 

purpose of intercepting the communications of a U.S. person 

without a warrant; 

• The government may not intentionally target a U.S. person; 

• The government may not intentionally acquire a communication that is sent and received entirely by persons known to 

be within the United States, and 

• Any surveillance under this authority must be conducted in 

a manner consistent with the Fourth Amendment.25


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26 Id. §§ 1881a(d) and (e). 27 Id. § 1881a(g). 28 Id. § 1881a(i)(3). 29 50 U.S.C. § 1881a(g)(B). 30 Id. § 1885a. 31 Id. § 1885a(a)(4). 32 In re National Security Agency Telecommunications Records Litigation, 633 F. Supp. 2d 949 

(N.D. Cal. 2009). The court also rejected a challenge under the Administrative Procedure Act. 

Id. at 974–76. 

In addition, the government is obligated to use ‘‘targeting procedures’’ to narrow the scope of collection and ‘‘minimization procedures’’ to limit the retention and dissemination of information 

about U.S. persons.26 Targeting procedures are the steps that the 

government takes prior to collection to ensure that it only targets 

non-U.S. persons overseas. Minimization procedures go into effect 

after collection, and describe how the government will handle information that falls outside the legal limits of the FAA. 

The government is not required to obtain a warrant to conduct 

surveillance under this authority. Instead, the government must 

certify that appropriate targeting and minimization procedures are 

in place before surveillance begins.27 If the certification is complete 

and targeting and minimization procedures are adequate, then the 

FISC enters an order approving the collection. Otherwise, the government has 30 days to correct any deficiencies in the application 

or cease its surveillance activities.28 In exigent circumstances, the 

government may conduct surveillance for up to 7 days before submitting the related certification to the FISC.29

The FAA also bars the initiation or continuation of civil suits, in 

state and Federal court, against any entity ‘‘for providing assistance to an element of the intelligence community.’’ 30 This provision 

includes retroactive immunity for telecommunications companies 

that participated in the warrantless wiretapping program ‘‘authorized by the President during the period beginning on September 11, 

2001, and ending on January 17, 2007.’’ 31 The courts have upheld 

the constitutionality of this retroactive immunity against claims 

based in the First Amendment, the Due Process Clause of the Fifth 

Amendment, and the separation of powers.32 This provision of the 

FAA is not scheduled to expire. 

CONCERNS WITH H.R. 5949

The FAA raises significant civil liberties concerns. Without question, it enables the government to collect significant and valuable 

foreign intelligence. It also authorizes the interception of private 

communications with U.S. citizens and other individuals lawfully 

on U.S. soil, thereby presenting serious incursions against the privacy protections afforded by the Fourth Amendment and the rights 

of free speech and association under the First Amendment. Congress should not reauthorize these authorities unless the executive 

branch can assure all Americans publicly—to the greatest extent 

possible—that these concerns have been adequately addressed. 

At the Committee’s markup, we offered amendments that would 

have left the underlying authorities of the FAA intact, but have required the government to make basic, non-sensitive information 

available to the public. The FAA is an important tool for intelligence gathering, but classified reports and secret court opinions 

are no substitute for public oversight. 


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33The Fourth Amendment provides: 

The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants 

shall issue, but upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons to be seized. 

U.S. Const. amend. IV. 34 50 U.S.C. § 1881a(l)(1). 35 Id. § 1881a(l)(2). 36 Id. § 1881a(l)(3). 

I. The Public Has a Right to Know How the Government Uses 

Warrantless Wiretapping Authorities 

Under section 702 of FISA, as added by the FAA, the government 

can and does intercept the communications of U.S. citizens, even 

in the absence of any particularized warrant or showing of probable 

cause. This approach to electronic surveillance raises concerns 

under the Fourth Amendment, which prohibits unreasonable 

searches, warrantless eavesdropping, and the use of ‘‘general warrants.’’ 33 In light of the fact that many United States entities, e.g., 

reporters, lawyers, religious groups, and human rights organizations, frequently communicate with overseas persons who are likely 

targets of section 702, this authority also raises First Amendment 

questions about the chilling effect of electronic surveillance on free 

speech and free association. 

Section 702 imposes three different reporting requirements on 

the executive branch. Every 6 months, the Attorney General and 

the Director of National Intelligence must evaluate the effectiveness of targeting and minimization procedures.34 Each component 

of the intelligence community must review its own use of section 

702 authority.35 Finally, each agency that uses section 702 must 

conduct an annual review of its activities and their impact on U.S. 

persons.36

Notwithstanding these requirements, the government has released very little information about its use of the FAA. The public 

has a right to know, at least in general terms, how often section 

702 is invoked, what kind of information the government collects 

using this authority, and how the government limits the impact of 

these programs on American citizens. 

During the Committee’s markup of H.R. 5949, Representative 

Bobby Scott (D–VA) offered an amendment that would have made 

these basic items of information available to the public by requiring 

the government to submit these reports to Congress in unclassified 

form. This amendment would have give Americans a sense of how 

the government uses the FAA, what kind of information it collects 

under section 702, and what steps it takes to protect U.S. citizens 

from unwarranted government intrusion. The amendment would 

not have put sensitive information at risk because it would permitted the government to include a classified annex, if necessary, 

in each report. We are disappointed that this simple change, necessary for meaningful public participation in this debate, was defeated ten to 19. 

II. The Public Has a Right to Know How the Government Interprets 

these Authorities 

The FISA court plays a critical role in overseeing the government’s use of section 702. Since 2008, each time that the intelligence community has sought to use this authority, the governVerDate Mar 15 2010 00:08 Aug 03, 2012 Jkt 019006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6601 E:\HR\OC\HR645P1.XXX HR645P1

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37The FISA Amendments Act: Hearing before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 112th Cong. (2012) (statement of Chairman 

Sensenbrenner). 

ment has applied to the court for approval of its targeting and 

minimization procedures. These classified opinions are available to 

Members of the Committee, but the decisions and orders of the 

FISA court, which have shaped the government’s interpretation of 

the FAA over time, are not available to the general public. 

In markup, Representative Jerrold Nadler (D–NY) offered an 

amendment that would have, for the first time, required the government to publish unclassified summaries of this secret body of 

law. Specifically, this amendment would have required the Attorney General to provide an unclassified summary of each decision, 

order, and opinion, issued by the FISA court that includes a significant interpretation or construction of section 702 of FISA. 

The disclosures mandated by this amendment have had bipartisan support. For example, the Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on reauthorization 

of the FAA on May 31, 2012. At the conclusion of that hearing, in 

response to a question about making more information about electronic surveillance available to the public, Chairman Sensenbrenner stated: 

My guess is that, rather than playing the numbers game 

either with the actual targets or the people who were incidentally surveilled, perhaps decisions of the FISA Court, 

particularly the review of the FISA court appropriately redacted, would be able to give us the answer to that question. . . . I have always been one that has favored disclosure.37

Chairman Sensenbrenner was correct. An appropriately redacted 

summary of key FISA court opinions would go a long way towards 

a public understanding of section 702, and would underscore how 

seriously the FISC takes its oversight responsibilities. 

Given the fact that the Nadler amendment would have only required summaries of these opinions—and not the opinions themselves—the government would still be able to protect sensitive intelligence sources and methods. This amendment aimed only to 

make the legal reasoning of the FISA court available to the public. 

It also sought to ensure that the United States should not have a 

secret body of law. 

Notwithstanding support from both Democrats and Republicans, 

Representative Nadler’s amendment failed by a vote of 14 to 17. 

III. The Public Has a Right to Know If Its Privacy Has Been Violated 

On its face, the FAA prohibits the intentional targeting of U.S. 

persons and persons located in the United States. Targeting and 

minimization procedures are required to limit the unintentional 

collection and use of information that the government could not 

normally access without a warrant. Unfortunately, the government 

has not always adhered to the legal limits of section 702 authority. 

The FAA had been in place for only a few months when The New 

York Times reported that the NSA had ‘‘overcollected’’ domestic 

communications, a practice described as significant and systematic, 


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38 Eric Lichtblau & James Risen, Officials Say U.S. Wiretaps Exceeded Law, N.Y. TIMES, Apr. 

15, 2009, at A1, available at http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all. 39Letter to Senators Ron Wyden (D–OR) & Mark Udall (D–CO), S. Select Comm. on Intelligence, from Kathleen Turner, Director of Legislative Affairs, Office of the Director of National 

Intelligence (July 26, 2011). 40Letter to Senators Ron Wyden (D–OR) & Mark Udall (D–CO), S. Select Comm. on Intelligence, from I. Charles McCollough III, Inspector General of the Intelligence Community (June 

15, 2012). 

even if unintentional.38 Although the government assures the committees of jurisdiction that this issue has been corrected, nearly all 

of the oversight of these programs is conducted in secret. As a result, the public has no way of knowing that its right to privacy is 

secure. 

The most troubling aspect of section 702 is its impact on the private communications of U.S. persons. The Office of the Director of 

National Intelligence has stated that ‘‘it is not reasonably possible 

to identify the number of people located in the United States whose 

communications may have been reviewed under the authority of 

the FAA.’’ 39 The Inspector General of the Intelligence Community 

has deferred to the NSA to reach a similar conclusion.40

We are prepared to accept that it might be difficult to determine 

the exact number of U.S. persons whose communications have been 

intercepted by the government under section 702, but the intelligence community surely has the ability to arrive at a rough estimate. If the government has never even estimated how many 

Americans have had their communications collected under the 

FAA, then the impact of this law on U.S. citizens may be more pronounced than Congress ever intended. 

To address this concern, Representative Sheila Jackson Lee (D– 

TX) offered an amendment that would have directed the Inspectors 

General of the Intelligence Community and the Department of Justice to produce an estimate of how many Americans have had their 

communications collected under section 702. The amendment 

would have also directed the Inspectors General to review compliance incidents, with a particular focus on recurring problems affecting the privacy of persons inside the United States. The resulting report would have been made public, with whatever redactions 

might be necessary to protect properly classified information. 

Although this amendment failed by a vote of 11 to 20, we will 

continue to press the government to provide this information. 

IV. A 5-year Extension of this Law Ignores Our Oversight Responsibilities 

The Obama Administration has asked Congress to extend these 

expiring authorities through December 31, 2017. If H.R. 5949 

passes without amendment, no matter what the outcome of the 

election this fall, the next presidential administration will come 

and go before Congress next debates reauthorization of the FAA. 

The legislative branch, however, must do better. We must require title VII of FISA to sunset earlier because this ensures that 

the delicate balance between the need to collect foreign intelligence 

information and the duty to protect the civil rights of American 

citizens is maintained. Congress should periodically revisit these 

authorities to examine the government’s record, and, if necessary, 

to scale back the power we have given to the executive branch. Five 

years is simply too long to ignore these responsibilities. 


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41 50 U.S.C. § 1805 note. 42 Id. §§ 1861 note and 1862 note. 43 Id. § 1801 note. 

To address this shortcoming in the legislation, Ranking Member 

John Conyers, Jr. (D–MI) offered an amendment that would have 

moved the bill’s sunset date to June 1, 2015. By requiring a 3-year 

extension instead of the bill’s 5-year extension, this amendment 

was a very reasonable compromise between our national security 

interests and our obligation to conduct meaningful oversight. Ranking Member Conyers’ amendment would have also had the effect of 

synching these authorities with the three sunsetting provisions of 

FISA enacted by the USA PATRIOT Act: the roving wiretap provision, which permits the government to follow an individual suspect, 

rather than a specific telephone or device;41 the ‘‘section 215’’ business records provision, which allows the government to demand 

virtually any information or record from a person or business by 

showing that the seizure is ‘‘relevant’’ to a national security investigation;42 and the never-used ‘‘lone wolf’’ provision, which enables 

the government to conduct surveillance on individuals suspected of 

terrorist activity but unaffiliated with any terrorist organization.43

This amendment would have enabled us to consider all of these 

controversial FISA amendments at the same time, instead of piecemeal over the course of the next 5 years. 

There is little harm, and much to gain, from revisiting the FAA 

sooner rather than later. Although the Conyers amendment failed 

12 to 12, we believe that we can still persuade our colleagues to 

defend our oversight role and adopt a shorter sunset. 

CONCLUSION

Unless it is amended, H.R. 5949 will represent a failure to conduct meaningful oversight of a controversial government authority. 

Americans are entitled to know how this law affects their constitutionally-protected rights to privacy, free association, and free 

speech; and Congress has a responsibility to withhold reauthorization of the FAA until a basic measure of transparency is ensured. 

For these reasons, we must respectfully dissent. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

JUDY CHU. 

JARED POLIS. 

Additional Views 

I concur in the dissent of my colleagues to H.R. 5949, the ‘‘FISA 

Amendments Act Reauthorization Act of 2012.’’ In addition to the 

dissenting views detailed by my colleagues, I offer these additional 

dissenting views. I believe there is inadequate due process for U.S. 


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persons in H.R. 5949. I was prepared to introduce an amendment 

to the Committee markup of H.R. 5949 that addressed this concern, but ultimately did not file the amendment—a copy of that 

unfiled amendment is included in this statement. 

The FISA Amendments Act of 2008 (FAA) requires that an order 

from the FISA Court be based on probable cause in order to intentionally target any U.S. person for electronic surveillance. [Sec. 

703(c)(1)(B)] In addition, the FAA prohibits so-called ‘‘reverse targeting’’—in which the government targets a non-U.S. person for the 

purpose of acquiring information on a particular, known U.S. person. [Sec. 702(b)(2)] 

However, the FAA does not make it clear that the government 

must obtain a warrant prior to searching for information acquired 

incidentally on a U.S. person in compliance with Sec. 702. Instead, 

the information of U.S. persons in such a situation is subject to 

guidelines and ‘‘minimization procedures’’ that are adopted by the 

Attorney General and that must be approved by the FISA Court— 

but which do not explicitly include a warrant requirement under 

the FAA. [Secs. 702(f)(1) and 702(c)(1)] 

Congress should prohibit the Federal Government from intentionally searching for information on a U.S. person in a data pool 

amassed lawfully under Sec. 702 of FISA should such a data pool 

ever be amassed—unless the searching official has a warrant, consent of the data subject, an emergency authorization, or a reasonable belief that the life or safety of the data subject is threatened 

and the information is needed to assist that person. 

The prohibition on ‘‘reverse targeting’’—where the government 

deliberately targets a non-U.S. person for the purpose of acquiring 

information about a U.S. person at the other end of the line—is not 

a substitute for a warrant requirement to search a database for a 

U.S. person should such a database ever be amassed pursuant to 

Sec. 702. Congress should require a warrant for the government to 

search for any U.S. person in that data if such data exists. ‘‘Minimization procedures’’ are also not a substitute for a warrant in 

such a case. 

The government must comply with the Fourth Amendment at all 

times, and the FAA should reflect that explicitly. 

For the above reasons and those described in the dissenting 

views, I concur and join in the dissent of my colleagues to H.R. 

5949. 

ZOE LOFGREN. 


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ATTACHMENT 

Æ 


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