19–010 

Calendar No. 463 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–229 

THE FAA SUNSETS EXTENSION ACT OF 2012 

SEPTEMBER 20, 2012.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND MINORITY VIEWS 

[To accompany S. 3276] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, which considered the original 

bill (S. 3276), to extend certain amendments made by the FISA 

Amendments Act of 2008, and for other purposes, having considered the same, reports favorably thereon, with amendment, and 

recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose of The FAA Sunsets Extension Act of 2012 .................................. 1 

II. Background .................................................................................................... 3 

III. History of the Bill and Committee Consideration ....................................... 8 

IV. Section-by-Section Summary of the Bill ...................................................... 11 

V. Congressional Budget Office Cost Estimate ................................................ 12 

VI. Regulatory Impact Evaluation ...................................................................... 14 

VII. Conclusion ...................................................................................................... 14 

VIII. Additional and Minority Views ..................................................................... 15 

IX. Changes to Existing Law Made by the Bill, as Reported ........................... 24 

X. Appendix ......................................................................................................... 28 

I. PURPOSE OF THE FAA SUNSETS EXTENSION ACT OF 2012 

Title VII of the Foreign Intelligence Surveillance Act of 1978 

(‘‘FISA’’) is scheduled to sunset on December 31, 2012, unless it is 

reauthorized by Congress. Title VII of FISA was initially enacted 


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1Senate Report 112–043, accompanying S. 1458, Intelligence Authorization Act for Fiscal Year 

2012, at p. 15. 

through the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (‘‘FISA Amendments Act’’ or ‘‘FAA’’). The FAA 

Sunsets Extension Act of 2012, as amended, reauthorizes Title VII 

of FISA for three years, enabling continued use of these important 

surveillance tools, while improving and clarifying the oversight and 

accountability provisions in Title VII to help ensure adequate protection of the privacy rights and civil liberties of persons in the 

United States. 

The measure reported by the Committee reauthorizes the provisions of Title VII of FISA until June 1, 2015. This is the same date 

on which three other surveillance provisions of FISA are set to expire, specifically Sections 206 and 215 of the USA PATRIOT Act 

(P.L. 107–56) (colloquially known as the ‘‘roving wiretap’’ and 

‘‘business records’’ provisions) and Section 6001(a) of the Intelligence Reform and Terrorism Protection Act (P.L. 108–458) (the 

‘‘lone wolf’’ provision). Aligning the sunsets for all of these provisions of FISA will allow Congress to consider these important surveillance authorities in a comprehensive fashion, and avoid the repeated consideration of multiple sunsets that has resulted in a 

number of short-term extensions during the past several years. Indeed, an overwhelming, bipartisan majority of the Senate Select 

Committee on Intelligence proposed the exact same approach when 

it approved the Intelligence Authorization Act for Fiscal Year 2012, 

noting in its committee report that ‘‘[t]he alignment of all the remaining sunset dates in FISA—those recently extended by Congress to June 1, 2015 and the sunset for Title VII—will provide 

Congress with an opportunity to examine comprehensively all expiring authorities at the same time rather than in a piecemeal 

fashion.’’ 1

The reported measure also bolsters the oversight and accountability provisions contained in Title VII of FISA by, among other 

things, requiring the Inspector General of the Intelligence Community to conduct a comprehensive review of the implementation of 

the FISA Amendments Act, with particular regard to the protection 

of the privacy rights of United States persons. The bill also clarifies 

the scope of the annual reviews submitted by the relevant agencies 

involved in the implementation of Title VII to ensure that Congress 

receives sufficient information to perform its oversight duties. In 

addition, in order to improve transparency, the bill requires the Inspector General of the Intelligence Community to release publicly 

a summary of his conclusions following the comprehensive review 

of the implementation of the Title VII surveillance authorities. 

Senator Feinstein, Chairman of the Senate Select Committee on 

Intelligence, has noted that none of these provisions pose operational problems. Instead, this measure permits the intelligence 

community to continue its surveillance activities authorized under 

Title VII, while ensuring—through improved oversight and accountability measures, and a more reasonable sunset date—that 

the privacy rights and civil liberties of Americans are protected. 


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2Foreign Intelligence Surveillance Act of 1978, P.L. 95–511, 50 U.S.C. § 1801 et seq. 3See, e.g., 50 U.S.C. § 1805(a)(2)(A). A detailed summary of the history and legal standards 

of the Foreign Intelligence Surveillance Act can be found in the following CRS report: ‘‘Reauthorization of the FISA Amendments Act,’’ Congressional Research Service, September 12, 2012, 

available at http://www.crs.gov/pages/Reports.aspx?PRODCODE=R42725&Source=search. 

II. BACKGROUND

A. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

The Foreign Intelligence Surveillance Act was enacted by Congress in 1978 in the wake of revelations that the Government had 

abused its power by conducting extensive surveillance on American 

citizens during the 1960s and 1970s under the guise of protecting 

national security.2 Through the passage of FISA, Congress established a Foreign Intelligence Surveillance Court (‘‘FISC’’ or ‘‘FISA 

court’’) comprised of sitting Federal judges, as well as a statutory 

framework within which the FISA court could determine when the 

Government could properly seek to gather foreign intelligence information from United States persons. The primary standard applied by the FISA court in assessing surveillance requests by the 

Government is whether there is probable cause to believe that the 

target of the surveillance is the agent of a foreign power.3

B. ENACTMENT OF THE FISA AMENDMENTS ACT OF 2008

Shortly after the terrorist attacks on September 11, 2001, President Bush authorized the National Security Agency (NSA) to conduct secret, warrantless surveillance within the United States of 

international communications into and out of the United States. 

President Bush stated that this surveillance was directed at ‘‘persons linked to al Qaeda or related terrorists organizations.’’ This 

warrantless surveillance was conducted outside the scope of FISA, 

without any approval by the FISA court, and without the full 

knowledge or consent of Congress. The public first became aware 

of the existence of this warrantless surveillance program in December 2005 through a report in The New York Times. In January 

2007, Attorney General Alberto Gonzales announced that this 

warrantless surveillance program, which came to be known as the 

Terrorist Surveillance Program (TSP), would be conducted subject 

to the approval of the FISA court. 

In the spring of 2007, the Director of National Intelligence submitted to Congress a proposal to amend FISA to ease restrictions 

on the surveillance of communications of foreigners where one or 

both parties to the communication were located overseas. The legislative proposal allowed the Government to target for surveillance 

any ‘‘person reasonably believed to be outside of the United States’’ 

without the need for a FISA court order. Congress enacted this proposed legislation in August 2007 as the Protect America Act, but 

imposed a six-month sunset on the legislation because of concerns 

that the bill lacked sufficient protection for or oversight of communications involving United States persons. 

In the fall of 2007, Congress began consideration of various legislative proposals to replace the Protect America Act, which ultimately expired in February 2008. The Senate Select Committee on 

Intelligence reported a bill in October 2007 that created a new 

legal framework for the collection of communications targeting nonUnited States persons who were reasonably believed to be located 


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overseas. Notably, that bill, S. 2248, included a provision that provided retroactive immunity from civil suit to those private sector 

telecommunications companies that had aided the Government in 

conducting warrantless wiretapping through the Terrorist Surveillance Program. In November 2007, the bill was sequentially referred to the Senate Judiciary Committee, where it was amended 

to remove the retroactive immunity provisions and to include additional oversight and privacy protections. The legislation that was 

ultimately enacted in July 2008, however, retained the retroactive 

immunity provisions, but only some of the oversight and privacy 

protection provisions that had been included in the bill reported by 

the Senate Judiciary Committee. The final legislation—the Foreign 

Intelligence Surveillance Act of 1978 Amendments Act of 2008 

(‘‘FISA Amendments Act’’)—included a sunset date of December 31, 

2012. The retroactive immunity provisions were not subject to the 

sunset. 

C. OVERVIEW OF TITLE VII OF FISA

The primary surveillance authority granted by the FISA Amendments Act is found in Section 702 of FISA. Section 702 permits the 

Government to conduct domestic electronic surveillance to collect 

foreign intelligence information from individuals who are non-U.S. 

persons, and who are reasonably believed to be located outside the 

United States. Under Section 702, the Government is not required 

to seek individualized court orders authorizing surveillance as to 

specific targets. Instead, the Attorney General and the Director of 

National Intelligence (‘‘DNI’’) must submit to the FISA court annual certifications identifying categories of foreign intelligence targets that the Government seeks to surveil electronically. 

Government acquisitions of data under Section 702 are subject to 

a number of express limitations imposed by Congress. Acquisitions 

under Section 702 may not intentionally target any person known 

at the time of acquisition to be located in the United States. In addition, the statute contains an express prohibition against so-called 

‘‘reverse targeting,’’ where the Government intentionally targets a 

person located outside the United States with the purpose of targeting a particular person reasonably believed to be located within 

the United States. Section 702 data collection also may not be used 

to intentionally target a United States person reasonably believed 

to be located outside the United States, nor may it be used to intentionally acquire any wholly domestic communications, i.e., communications as to which the sender and all intended recipients are 

known at the time of acquisition to be located in the United States. 

Finally, Section 702 expressly requires that all collection of data 

under this authority must be conducted in a manner consistent 

with the Fourth Amendment to the Constitution. 

Section 702 also requires that the Attorney General, in consultation with the DNI, adopt targeting and minimization procedures, as 

well as acquisition guidelines. The statute requires that the targeting procedures be ‘‘reasonably designed’’ to ensure that the Government does not collect wholly domestic communications, and that 

only persons outside the United States are targeted for surveillance. The minimization procedures adopted by the Attorney General must protect the identities of United States persons, as well 

as any nonpublic information concerning those individuals that 


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might be acquired incidentally by the Government. Before it will 

approve a certification for Section 702 surveillance, the FISA court 

must review and approve the targeting and minimization procedures submitted by the Attorney General to ensure that they comply with both the statute and the Fourth Amendment. Although 

the Government is required to share with Congress any significant 

legal opinions by the FISA court related to Section 702, these legal 

documents remain classified and have not been disclosed publicly, 

either in redacted or summary form. 

The acquisition guidelines are designed to ensure compliance 

with the express limitations in Section 702 discussed above, including the prohibitions on ‘‘reverse targeting’’ and the acquisition of 

wholly domestic communications. Unlike the targeting and minimization procedures, however, the acquisition guidelines are not 

subject to FISA court approval. 

Sections 703 and 704 of FISA specifically deal with the targeting 

of United States persons reasonably believed to be located outside 

the United States, in order to collect foreign intelligence information. Under Section 703, the Government must demonstrate to the 

FISA court that there is probable cause that the target is a foreign 

power, an agent of a foreign power, or an officer or employee of a 

foreign power, before it can conduct electronic surveillance or acquire stored electronic communications or data in the United 

States. When the surveillance targets a U.S. person and is conducted overseas, and when the target ‘‘has a reasonable expectation 

of privacy and a warrant would be required if the acquisition were 

conducted inside the United States for law enforcement purposes,’’ 

Section 704 requires a similar showing of probable cause that the 

target is a foreign power, agent of a foreign power, or an officer or 

employee of a foreign power. Notably, prior to enactment of Section 

704, such overseas acquisitions targeting U.S. persons had been 

governed by Section 2.5 of Executive Order 12333, and the probable 

cause determinations had been made by the Attorney General. 

With enactment of Section 704, the Government’s showing of probable cause is now subject to judicial review by the FISA court. 

In addition to the judicial review provided by the FISA court, 

Title VII of FISA contains a number of reporting and oversight provisions to help protect the privacy rights and civil liberties of U.S. 

persons, and to ensure compliance with the statute. Every six 

months, for example, the Attorney General and the DNI are required to provide Congress and the FISA court with an assessment 

of compliance with the targeting and minimization procedures, as 

well as compliance with the acquisition guidelines. The statute also 

requires that the head of each element of the intelligence community conducting an acquisition authorized under Section 702 conduct an annual review of the implementation of Section 702 surveillance. In addition, attorneys with the Department of Justice coordinate with the Office of the Director of National Intelligence 

(‘‘ODNI’’) and conduct on-site reviews of the Section 702 surveillance activities of the relevant intelligence community agencies at 

least once every 60 days. These reviews include routine examinations of the targeting determinations made by the relevant agencies. To date, these internal assessments and reviews have not revealed any intentional attempt to circumvent or violate the legal 

requirements of Section 702. 


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4February 8, 2012 letter from DNI Clapper and Attorney General Holder to Speaker Boehner, 

Majority Leader Reid, Rep. Pelosi, and Senator McConnell. (Attached in Appendix). 5 Id. 

Under Section 702, the Inspector General of the Department of 

Justice and the inspector general of each element of the intelligence community authorized to acquire foreign intelligence information under Section 702 are authorized—but not required—to review certain aspects of the implementation of Section 702. Although the Committee has had the opportunity to review the reports of the inspector general for one of the relevant agencies and 

only just recently received the first compliance report from another, 

these reports do not cover the full scope of topics set forth in the 

statutory authorization for agency assessments. Moreover, there 

has been no comprehensive review of the implementation of Section 

702 by an independent inspector general that covers all of the relevant agencies in the intelligence community. Such a comprehensive review that cuts across agency boundaries could be accomplished by the newly-created Inspector General of the Intelligence 

Community. 

D. NEED FOR REAUTHORIZATION OF TITLE VII OF FISA

On February 8, 2012, the Attorney General and the Director of 

National Intelligence (DNI) sent a letter to the leadership of the 

Senate and the House of Representatives, urging Congress to reauthorize Title VII of FISA, and noting that reauthorization of this 

authority is ‘‘the top legislative priority of the Intelligence Community.’’ 4 Attorney General Holder and DNI Clapper asserted in that 

letter that ‘‘[i]ntelligence collection under Title VII has produced 

and continues to produce significant intelligence that is vital to 

protect the Nation against international terrorism and other 

threats.’’ Along with the February 8, 2012 letter, the administration provided Congress with an unclassified background paper on 

Title VII that had been prepared by the Department of Justice and 

the Office of Director of National Intelligence.5 According to that 

unclassified background paper, Section 702 collection ‘‘provides information about the plans and identities of terrorists’’ and enables 

the intelligence community to ‘‘collect information about the intentions and capabilities of weapons proliferators and other foreign adversaries who threaten the United States.’’ The administration asserts that ‘‘[f]ailure to reauthorize Section 702 would result in a 

loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities.’’ 

E. CHANGES TO SUNSET AND OVERSIGHT PROVISIONS IN S. 3276, AS

REPORTED

1. June 2015 sunset 

During its executive business meeting on July 19, 2012, the Committee adopted and reported favorably a substitute amendment to 

S. 3276 that was offered by Chairman Leahy and supported by 

Senator Feinstein, Chairman of the Senate Select Committee on Intelligence. As amended, the measure extends the sunset of Title VII 

of FISA until June 1, 2015. Extending the sunset for Title VII to 

2015 will enable Congress to revisit these important provisions in 


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6Minority Views at 5. 

7Section 404(b)(1) of the FISA Amendments Act of 2008 (P.L. 110–261). 

8Senate Report 112–043, accompanying S. 1458, Intelligence Authorization Act for Fiscal Year 

2012, at p. 15. 

a timely manner—which is particularly important since the work 

of the relevant inspectors general has not yet been fully completed. 

Indeed, as acknowledged in the Minority Views, the Inspector General for the Department of Justice did not issue its first compliance 

report on Section 702 implementation until September 12, 2012, 

and that report was necessarily limited in scope. The alternative of 

a five-year extension of the Title VII authorities, without any additional oversight or accountability improvements, and without the 

benefit of the complete work of the inspectors general, is ill-advised 

and inconsistent with this Committee’s constitutional responsibility 

to provide vigorous and effective oversight. 

A June 2015 sunset date would also align with the sunset dates 

for the other expiring provisions of FISA, namely Sections 206 and 

215 of the USA PATRIOT Act (the ‘‘roving wiretap’’ and ‘‘business 

records’’ provisions) and Section 6001(a) of the Intelligence Reform 

and Terrorism Protection Act (the ‘‘lone wolf’’ provision). This alignment will provide Congress with the opportunity to consider these 

important surveillance provisions in a comprehensive manner. The 

Minority Views assert that aligning these sunsets would somehow 

cause operational problems because the intelligence community 

might be concerned that these intelligence tools would ‘‘disappear 

in the middle of an operation,’’ and, therefore, would forego using 

one of these provisions.6 The Minority Views overlook, however, 

that the FISA Amendments Act already provides for transition procedures that would ensure that any orders, authorizations, or directives issued prior to the sunset date would not just ‘‘disappear,’’ but 

rather would continue in effect until the date of the expiration of 

such order, authorization, or directive.7 Nothing in the measure reported by the Committee would change how those transition procedures operate, and the Committee has received no information 

from the intelligence community indicating any such concern. 

To the contrary, the Chairman of the Senate Select Committee 

on Intelligence has stated that none of the provisions in the substitute amendment—including the June 2015 sunset—pose any 

operational problems. Indeed, an overwhelming bipartisan majority 

of the Senate Select Committee on Intelligence proposed an identical approach to aligning the FISA sunsets when that committee 

reported S. 1458, the Intelligence Authorization Act for Fiscal Year 

2012. After approving the bill by a 14–1 bipartisan vote, the Senate 

Intelligence Committee stated in its report to the full Senate that 

‘‘alignment of all the remaining sunset dates in FISA—those recently extended by Congress to June 1, 2015 and the sunset for 

Title VII—will provide Congress with an opportunity to examine 

comprehensively all expiring authorities at the same time rather 

than in a piecemeal fashion.’’ 8

2. Improved oversight 

The measure reported by the Committee also requires the Inspector General of the Intelligence Community to conduct a comprehensive and independent review of the implementation of the 

FISA Amendments Act surveillance authorities, and expands and 


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9The assertion in the Minority Views that the reported bill ‘‘requires the Inspector Generals 

[sic] of the various Intelligence Community agencies to review the acquisition, use, and dissemination of Section 702 information’’ is incorrect. See Minority Views at 4. The reported bill clarifies the scope of the existing authorization and requirements for the Inspectors General for the 

relevant agencies, but does not require any review of the acquisition, use, or dissemination of 

Section 702 information. Pursuant to Section 3(b)(2) of the reported bill, the Inspector General 

of the Intelligence Community (not the Inspectors General for the other relevant agencies) is 

authorized—but not required—to conduct such a review. 10See Minority Views at 6. 11 Id. In addition, the citation in footnote 16 of the Minority Views to Senate Report No. 112– 

174 is inapposite, as that report was issued by the Senate Select Committee on Intelligence, 

not the Senate Judiciary Committee, and contains no pertinent description of the IC IG review 

authorized by the measure reported by this Committee. 

clarifies the scope of the inspector general reviews and annual reporting requirements.9 The Inspector General of the Intelligence 

Community would be required to review the procedures and guidelines developed by the intelligence community to implement Section 702, particularly with respect to the protection of the privacy 

rights of U.S. persons. In addition, the Inspector General of the Intelligence Community would be required to evaluate the limitations, procedures, and guidelines designed to protect U.S. person 

privacy rights, as well as an evaluation of the circumstances under 

which the contents of communications may be searched in order to 

review the communications of particular U.S. persons. 

Contrary to the argument in the Minority Views, the reported 

measure provides the Inspector General of the Intelligence Community with the authority to evaluate the specific procedures, guidelines, and limitations outlined in existing statute, not to develop 

privacy policy. Interestingly, in arguing against an independent review by the Inspector General of the Intelligence Community, the 

Minority Views inadvertently provides support for periodic sunsets 

of the Title VII provisions, noting that ‘‘[i]n fact, the process of reauthorizing the legislation has enabled the Committee to investigate this very subject.’’ 10

Finally, the Inspector General of the Intelligence Community 

would be required to make publicly available a summary of the 

findings and conclusions of any review conducted pursuant to this 

authority. Significantly, this provision does not require the Inspector General of the Intelligence Community to issue a full unclassified report, but rather it requires that a summary of the findings 

and conclusions be made publicly available ‘‘in a manner consistent 

with the protection of the national security of the United States.’’ 

As such, the repeated assertions in the Minority Views that the bill 

requires public disclosure of a heavily redacted ‘‘report’’ are plainly 

inaccurate.11

III. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. INTRODUCTION OF THE BILL

The FAA Sunsets Extension Act of 2012 was introduced as S. 

3276 in the Senate Select Committee on Intelligence (SSCI). During a closed meeting on May 22, 2012, the SSCI considered the bill 

and amendments. The bill introduced in the SSCI provided for an 

extension of the Title VII authorities—without amendment—until 

June 1, 2017. That legislation was reported by the SSCI to the full 

Senate on June 7, 2012, with Report No. 112–174. 


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B. COMMITTEE CONSIDERATION

At the request of the Chairman and Ranking Member, the Committee was provided a classified briefing on Title VII of FISA by 

administration officials on June 26, 2012. On June 28, 2012, Chairman Leahy and Ranking Member Grassley sent a letter to Majority 

Leader Harry Reid jointly requesting that the FAA Sunsets Extension Act of 2012, S. 3276, be referred sequentially to the Senate Judiciary Committee for consideration. The bill was placed on the 

Committee’s agenda for consideration on July 12, 2012. Pursuant 

to the request of Ranking Member Grassley, the bill was held over 

for consideration the following week. 

On July 19, 2012, the Committee on the Judiciary considered S. 

3276 during an open and public executive business meeting. Chairman Leahy offered a substitute amendment, described above, that 

was agreed to by the Committee. Senator Kyl and Senator Sessions 

later requested that they be recorded as having opposed adoption 

of the substitute amendment. 

The Committee then proceeded to consideration of a number of 

amendments that had been filed in advance of the July 19 executive business meeting. With the exception of the substitute amendment offered by Chairman Leahy and the amendment offered jointly by Senators Lee and Durbin, none of the other amendments filed 

or offered by the Minority dealt with the substance of FISA, the 

FISA Amendments Act, or any other provision in Title 50. Instead, 

despite requests from both Chairman Leahy and Senator Feinstein 

that those amendments be offered at another time in order to facilitate the expeditious consideration of these important surveillance 

provisions, Republican Senators offered a series of amendments 

that Senator Feinstein described as ‘‘extraneous’’. 

Senator Kyl offered an amendment to create a new offense in 

Title 18 in order to prohibit material support with the intent to reward or facilitate international terrorism. The amendment would 

also increase the maximum penalties for existing material support 

crimes. The amendment was rejected by a roll call vote. 

The vote record is as follows: 

Tally: 8 Yeas, 10 Nays 

Yeas (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 

Nays (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 

Senator Grassley offered an amendment to add the death penalty 

as a punishment to certain crimes involving weapons of mass destruction. Senator Feinstein offered a motion to table the amendment. The motion to table was accepted by a roll call vote. 

The vote record is as follows: 

Tally: 10 Yeas, 8 Nays 

Yeas (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 

Nays (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 


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Senator Cornyn offered an amendment to require the President, 

within 30 days, to disclose to the Senate and House Committees on 

the Judiciary, Intelligence and Armed Services, the Department of 

Justice’s Office of Legal Counsel memos discussing the legal basis 

for the targeted killing of United States citizens abroad. Senator 

Feinstein offered a motion to table the amendment. The motion to 

table was accepted by a roll call vote. 

The vote record is as follows: 

Tally: 10 Yeas, 8 Nays 

Yeas (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 

Nays (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 

Senator Lee offered an amendment to require the Government to 

obtain a warrant before querying the content of communications 

collected under the FISA Amendments Act with the purpose of 

finding a United States person’s communications. The amendment 

was rejected by a roll call vote. 

The vote record is as follows: 

Tally: 3 Yeas, 15 Nays 

Yeas (3): Durbin (D–IL), Coons (D–DE), Lee (R–UT). 

Nays (15): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Whitehouse (D–RI), Klobuchar (D–MN), Franken (D– 

MN), Blumenthal (D–CT), Grassley (R–IA), Hatch (R–UT), Kyl (R– 

AZ), Sessions (R–AL), Graham (R–SC), Cornyn (R–TX), Coburn (R– 

OK). 

Senator Grassley offered an amendment to require the Department of Justice Inspector General to audit all Federal criminal 

wiretap applications in 2009 and 2010 in order to determine whether Department of Justice officials reviewed the contents of applications filed with the Federal courts. Senator Feinstein offered a motion to table the amendment. The motion to table was accepted by 

a roll call vote. 

The vote record is as follows: 

Tally: 10 Yeas, 8 Nays 

Yeas (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 

Nays (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 

Senator Cornyn offered an amendment to require the President, 

within seven days, to report to congressional leaders and the heads 

of the Senate and House intelligence committees any targeted killing of a United States citizen abroad. Senator Feinstein offered a 

motion to table the amendment. The motion to table was accepted 

by a roll call vote. 

The vote record is as follows: 

Tally: 10 Yeas, 8 Nays 

Yeas (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 


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Nays (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 

Following the roll call vote on the Cornyn amendment, the Committee was unable to maintain a quorum and recessed subject to 

the call of the chair. At 2:15 p.m. on July 19, 2012, a sufficient 

quorum of the Committee assembled, and the Committee resumed 

the executive business meeting. The Committee then voted to report S. 3276, the FAA Sunsets Extension Act, as amended, favorably to the full Senate. The Committee proceeded by roll call vote 

as follows: 

Tally: 10 Yeas, 8 Nays 

Yeas (10): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT). 

Nays (8): Grassley (R–IA), Hatch (R–UT), Kyl (R–AZ), Sessions 

(R–AL), Graham (R–SC), Cornyn (R–TX), Lee (R–UT), Coburn (R– 

OK). 

IV. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title 

This section provides that the legislation may be cited as the 

‘‘FAA Sunsets Extension Act of 2012.’’ 

Section 2. Extension of FISA Amendments Act of 2008 Sunset 

This section extends the sunset on Title VII of the Foreign Intelligence Surveillance Act from December 31, 2012 to June 1, 2015. 

Section 3. Inspector general reviews 

This section clarifies the scope of the authorization for reviews 

by the inspectors general for agencies and elements of the intelligence community that implement Section 702 of FISA. It ensures 

that such reviews cover any agency or element that has targeting 

or minimization procedures approved by the FISA court pursuant 

to Section 702. Additionally, this section requires that under such 

inspectors general reviews, an accounting of the number of targets 

that are later determined to be United States persons be included. 

Current law only requires an accounting of the number of targets 

later determined to be located within the United States. 

This section also requires a new independent review by the recently established Inspector General of the Intelligence Community, which was created in 2010 (P.L. 111–259). The review requires the Inspector General of the Intelligence Community to report on the procedures and guidelines developed by the intelligence 

community to implement Section 702 of FISA, with respect to the 

protection of the privacy rights of United States persons. The Inspector General of the Intelligence Community review must include 

an evaluation of the limitations, procedures, and guidelines designed to protect United States person privacy rights, as well as an 

evaluation of the circumstances under which the contents of communications may be searched in order to review the communications of particular United States persons. The Inspector General of 

the Intelligence Community review is required to be submitted no 

later than December 31, 2014. 


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Finally, this section requires an unclassified summary of the 

findings and conclusions of the Inspector General’s report required 

in this section to be made publicly available. 

Section 4. Annual reviews 

This section makes changes to the annual review requirements 

for those agencies and elements of the intelligence community that 

implement Section 702 of FISA. The changes made under this section are consistent with changes made to the inspector general provisions in Section 3. This section clarifies that annual reviews must 

be submitted by the head of any agency or element that has targeting or minimization procedures approved by the FISA court pursuant to Section 702. Additionally, this section requires that those 

annual reviews include an accounting of the number of targets that 

are later determined to be United States persons. Current law only 

requires an accounting of the number of targets later determined 

to be located within the United States. 

V. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee sets forth, with respect to the bill, S. 3276, 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, September 14, 2012. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 3276, the FAA Sunsets Extension 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. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 3276—FAA Sunsets Extension Act of 2012 

S. 3276 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 S. 3276 would have 

no significant cost to the federal government. 

Enacting the bill could affect direct spending and revenues; 

therefore, pay-as-you-go procedures apply. However, CBO estimates 

that any effects would be insignificant for each year. 

The FISA Amendments Act of 2008 clarified the authority of the 

federal government to surveil and intercept communications of certain persons located outside the United States. S. 3276 would extend the provisions of that act through June 1, 2015 (otherwise, 


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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 prosecute. CBO expects that S. 3276 would apply to a relatively 

small number of additional offenders, 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. 

In addition, S. 3276 would require the Inspector General of the 

Intelligence Community to review certain procedures and guidelines to protect the privacy rights of persons in the United States 

and prepare a report based on that review. Based on information 

from the intelligence community, CBO estimates that any additional costs to complete those activities would not be significant in 

any year. 

Because those prosecuted and convicted under S. 3276 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 require 

providers of electronic communication services to furnish information. The bill also would extend an existing mandate by exempting 

electronic communication service providers from liability when they 

comply with an order to furnish information. CBO cannot determine whether the costs to electronic communication service providers to furnish information as required by the bill or the forgone 

damages of individuals that sue such providers 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 to provide information, so the costs to intergovernmental 

entities would be small. The bill also would impose a mandate by 

extending an existing preemption of state and local liability laws. 

CBO estimates that the costs to public entities of all the intergovernmental mandates in the bill would be small and well below the 

annual threshold established in UMRA ($73 million in 2012, adjusted annually for inflation). 

On July 19, 2012, CBO transmitted a cost estimate for S. 3276, 

the FISA Amendments Act Reauthorization Act of 2012, as reported by the Senate Select Committee on Intelligence on June 7, 

2012. That version of the bill would not require reviews or reports 

by the Inspector General of the Intelligence Community; otherwise, 

the bills are similar and the cost estimates are the same. 

On July 2, 2012, CBO transmitted a cost estimate for H.R. 5949, 

the FISA Amendments Act Reauthorization Act of 2012, as ordered 

reported by the House Committee on the Judiciary on June 19, 

2012. On July 19, 2012, CBO transmitted a cost estimate for H.R. 

5949 as reported by the House Permanent Select Committee on Intelligence on June 28, 2012. CBO estimated that both versions of 

H.R. 5949 would have no significant cost to the federal government. 


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The CBO staff contacts for this estimate are Mark Grabowicz (for 

federal costs), J’nell L. Blanco (for the impact on state and local 

governments), and Elizabeth Bass (for the impact on the private 

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

VI. REGULATORY IMPACT EVALUATION

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will 

result from the enactment of S. 3276. 

VII. CONCLUSION

The FAA Sunsets Extension Act of 2012, S. 3276, was reported 

favorably with an amendment to the Senate by the Committee on 

the Judiciary. The bill, as amended, preserves important surveillance authorities for the collection of foreign intelligence information while enhancing oversight and reporting requirements. The reported measure contains a June 2015 sunset that aligns with the 

sunset dates for other important provisions of FISA, including the 

business records provision, the roving wiretap provision, and the 

‘‘lone wolf’’ provision. A shorter sunset period ensures appropriate 

Congressional oversight of the implementation of the FISA Amendments Act. Additionally, the legislation contains new reporting requirements on the implementation of the surveillance authorities 

with respect to the privacy rights of United States persons. A new 

review by the Inspector General of the Intelligence Community 

that spans the entire intelligence community would provide valuable information to Congress as it performs its oversight role. 

Moreover, an unclassified summary of the findings of this comprehensive report must be made publicly available in order to bolster accountability and transparency. Because the current surveillance authorities are due to expire at the end of this year, the Committee recommends swift action on S. 3276, as reported. 


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VIII. ADDITIONAL AND MINORITY VIEWS

ADDITIONAL VIEWS FROM SENATOR DURBIN AND 

MINORITY VIEWS FROM SENATOR LEE 

It is unclear how many communications involving American citizens are collected, stored, and analyzed by the government under 

Section 702 of the Foreign Intelligence Surveillance Act (‘‘FISA’’). 

However large this number may be, we believe there should be 

meaningful protections when the government searches through 

such communications looking for information on individual American citizens. Otherwise, by means of these so-called ‘‘backdoor’’ 

searches, the government could potentially conduct significant 

warrantless surveillance on American persons. Current administration of the FISA Amendments Act thus implicates core Fourth 

Amendment values. 

The amendment we introduced would clarify that Section 702 of 

FISA does not permit the government to search the contents of 

communications acquired pursuant to Section 702 for the purpose 

of finding communications of a particular United States person. In 

effect, the amendment would require that the government obtain a 

warrant before performing queries within the communications it 

has collected under Section 702 for the purpose of finding an American person’s communications. The amendment excludes from the 

warrant requirement instances in which an emergency authorization has been obtained, the life or physical safety of the American 

person targeted by the search is in danger and the search is for the 

purpose of assisting that person, or where the United States person 

targeted in the search has consented to that search. The amendment is identical to that offered by Senators Wyden and Udall (CO) 

during consideration of the bill by the Select Committee on Intelligence. 

FISA requires that the government obtain a FISA Court warrant 

any time it seeks to conduct surveillance on a U.S. person. Indirect 

surveillance of U.S. persons by means of backdoor searches should 

be no different. No one disputes that the government may have a 

legitimate need to conduct queries of information collected under 

Section 702, and we would think no one is surprised that the government asserts that a warrant requirement would be burdensome. 

Indeed, that is the precise nature of a warrant requirement—to require the government to articulate and justify the need for its intrusion on the privacy of U.S. persons. Whether under Title III or 

FISA more generally, the government will often have legitimate 

needs to conduct searches. But no one would suggest that the existence of a legitimate need for information obviates the need for the 

government to obtain a warrant in those contexts, and we find the 


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assertion of this argument with respect to Section 702 similarly 

unpersuasive. 

DICK DURBIN. 

MICHAEL S. LEE. 


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1Letter from James R. Clapper, Director of National Intelligence, and Eric Holder, Attorney 

General, to John Boehner, Speaker of the House, Harry Reid, Senate Majority Leader, Nancy 

Pelosi, House Minority Leader, and Mitch McConnell, Senate Minority Leader (February 8, 

2012) (on file with U.S. Senate Judiciary Committee minority staff). 2 Id. 3 Id. 4 Id. 

MINORITY VIEWS OF SENATORS GRASSLEY, HATCH, KYL, 

SESSIONS, GRAHAM, CORNYN AND COBURN 

EXPIRING PROVISIONS SHOULD BE EXTENDED TO 2017 

On February 8, 2012, Attorney General Eric Holder and Director 

of National Intelligence James Clapper wrote to Speaker of the 

House Boehner, Majority Leader Reid, Minority Leader Pelosi, and 

Minority Leader McConnell urging Congress to reauthorize Title 

VII of the Foreign Intelligence Surveillance Act (FISA), enacted by 

the FISA Amendments Act of 2008 (FAA) which is set to expire at 

the end of this year. In that letter, Attorney General Holder and 

Director Clapper wrote, ‘‘Intelligence collection under Title VII has 

produced and continues to produce significant intelligence that is 

vital to protect the nation against international terrorism and 

other threats.’’ 1 The letter described the critical importance of Title 

VII, including Section 702, which authorizes surveillance of nonU.S. persons located overseas who are of foreign intelligence value. 

The authors added that ‘‘[r]eauthorizing this authority is the top 

legislative priority of the Intelligence Community.’’ 2

Title VII of FISA includes several valuable tools, described more 

fully below, which allow the Intelligence Community to quickly 

gather information on terrorist threats and intelligence leads. Most 

notably, Section 702 authorizes, with approval from the Foreign Intelligence Surveillance Court (FISC), electronic surveillance of nonU.S. persons located overseas, but without the need for individualized orders for every target of the surveillance, as is required for 

surveillance of anyone inside the United States. According to the 

Director of National Intelligence and Attorney General, Section 702 

gives the Intelligence Community the flexibility to rapidly respond 

to a wide variety of threats against the United States.3 The Attorney General and the Director of National Intelligence warned that 

failure to reauthorize Title VII of FISA would ‘‘result in a loss of 

significant intelligence and the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities.’’ 4

On May 22, 2012, in a 13–2 bipartisan vote, the Senate Select 

Committee on Intelligence (SSCI) reported out S. 3276, FAA Sunsets Extension Act of 2012, without amendment. The bill does exactly what the Administration requested; namely, it provides a 

clean reauthorization through June 1, 2017. It simply replaces the 

current date of December 31, 2012 in the statute with the new 


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5FAA Sunsets Extension Act of 2012, S. Rep. No. 112–174, at 2 (2012) (majority report). 

6 Id. at 8. 

7 Id. at 9. 

date. In reporting the bill to the Senate floor, the SSCI stated that 

Title VII ‘‘has been implemented with attention to protecting the 

privacy and civil oversight of U.S. persons, and has been subject to 

extensive oversight by the Executive branch, the FISC, as well as 

Congress.’’ 5

In reaching its conclusion, the SSCI found that: • Section 702 of FISA is narrowly tailored to ensure that it 

may only be used to target non-U.S. persons located abroad; • Congress recognized at the time the FISA Amendments 

Act was enacted, it was not possible to collect information from 

a foreign target without also collecting information about people with whom that target was communicating. Therefore, Congress mandated that the Attorney General adopt, and the FISC 

approve, procedures to minimize the acquisition, retention, and 

dissemination of information concerning U.S. persons. • These minimization procedures, along with the numerous 

reporting requirements already in existence under FISA ‘‘enable the Committee to evaluate the extent to which [minimization] procedures are effective in protecting the privacy and civil 

liberties of U.S. persons.’’ • The Inspector Generals of the National Security Agency 

(NSA) and the Intelligence Community are currently conducting a review to determine whether it is feasible to estimate 

the number of people located in the U.S. whose communications may have been incidentally collected under Section 702 

of FISA, and therefore no amendments on this subject are necessary.6

Chairman Feinstein issued Additional Views to the Committee’s 

report, explaining why the SSCI rejected several amendments 

which sought to shorten the sunset provision and add additional 

burdens on the Intelligence Community. The Chairman wrote that 

after several hearings, numerous staff meetings with Intelligence 

Community representatives, and reviews of classified reports and 

FISC documents as part of its oversight function, the SSCI concluded that existing FAA provisions were adequate to protect the 

privacy and civil liberties of U.S. persons. 

SSCI Chairman Feinstein concluded that: 

Ultimately, it is in the Nation’s interest to see this statute 

reauthorized, and the first priority of this Congress, must 

be to ensure that this important law does not lapse at the 

end of the year. The Committee’s action to report a clean 

bill that would extend the sunsets of the FISA Amendments Act, without amendment that could impede its ultimate enactment, is an important step in ensuring this result.7

We agree with Chairman Feinstein’s statement. A clean version 

of S. 3276 (i.e., without amendment) would simply extend the sunset date from December 31, 2012 to June 1, 2017. That is the only 

change that should be made to the statute. Our oversight of the implementation of the statute has found no evidence that it has been 


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8 50 U.S.C. § 1881a. 

intentionally misused or that more oversight is needed. A clean bill 

would allow the Intelligence Community to continue utilizing these 

valuable tools against potential terrorists or other intelligence targets without interruption or delay and will provide the Intelligence 

Community with much needed certainty and stability. 

Title VII provides not only valuable intelligence tools but also 

privacy protections. It was designed to facilitate the collection of intelligence information about non-U.S. persons abroad while balancing the Fourth Amendment rights of U.S. persons whose communications are incidentally collected in the course of such surveillance. No changes are therefore necessary to the statute. 

Section 702 

As noted above, Section 702 authorizes, with approval of the 

FISC, electronic surveillance of non-U.S. persons located overseas, 

but without the need for individualized orders for every target of 

the surveillance.8 Section 702 specifically prohibits targeting U.S. 

persons, acquiring wholly domestic communications, or targeting 

someone outside the U.S. with the intent to collect information on 

a target inside the U.S. (known as ‘‘reverse-targeting’’). Thus, since 

the target of any surveillance is a non-U.S. person, the only way 

that a U.S. citizen’s privacy is potentially compromised is if that 

U.S. person is in contact with the foreign target. In essence, the 

surveillance only incidentally affects U.S. persons. Section 702 also 

requires that the government demonstrate to the FISC that it has 

‘‘targeting procedures’’ that are designed to weed out intentional 

collection of communications of anyone located inside the United 

States, that the Intelligence Community uses ‘‘minimization procedures’’ that restrict the use of any information about U.S. persons 

that is incidentally collected, and that it has ‘‘acquisition guidelines’’ that ensure that the statutory limits on collection are obeyed. 

Under Section 702, the FISC reviews and approves annual certifications from the Attorney General and Director of National Intelligence about collection of information on categories of foreign intelligence targets, what procedures the Intelligence Community 

will use to accomplish this surveillance, how they will target subjects for surveillance, and how the Intelligence Community will use 

the information. This format allows the FISC to review on whom 

and how the Intelligence Community is conducting surveillance 

while also protecting the constitutional rights of U.S. persons. 

In addition, FISA requires that the Attorney General and Director of National Intelligence conduct semi-annual assessments of the 

Intelligence Community’s compliance with the targeting and minimization procedures and the acquisition guidelines and report to 

Congress on the results of their audits. Separately, they internally 

review compliance every 60 days. Furthermore, the statute authorizes the Inspector General of the Department of Justice to review 

the program at any time and requires that significant opinions of 

the FISC and the FISC appellate court be provided to Congress. 

The combination of the statutory limitations on collection, targeting and minimization procedures, and acquisition guidelines, 

FISC review of those procedures and guidelines, and compliance 


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9 50 U.S.C. 1881b. 

10 50 U.S.C. 1881c. 11 Id. at 6–7. 

oversight by the Administration and Congress, ensure that the 

rights of U.S. persons are sufficiently protected when their communications are incidentally collected in the course of targeting nonU.S. persons located abroad. 

Sections 703 and 704 

Sections 703 9 and 704 10 cover electronic surveillance or searches 

of stored communications of U.S. persons who are located abroad, 

when conducted in the United States, and other searches of U.S. 

persons abroad, respectively. They require that the government obtain authorization from the FISC for such searches, and such authorization is dependent on showing of probable cause that the targeted U.S. person is a foreign power, an agent of a foreign power, 

or an officer or employee of a foreign power. 

AMENDMENTS IN COMMITTEE

Despite the Administration’s desire to pass a clean bill with an 

extension to 2017, and the SSCI’s thoughtful conclusions in reporting such a bill, the Chairman proceeded with a substitute amendment. The substitute amendment is unnecessary. It will simply 

delay passage of a critical national security bill and provide uncertainty for our national security operators in the field. Indeed, the 

substitute creates a risk that the statute will be allowed to sunset, 

causing operational problems and the loss of a valuable and productive national security tool. 

The substitute amendment: (1) seeks to shorten the sunset provision from June 1, 2017 to June 1, 2015; (2) requires the Inspector 

Generals of the various Intelligence Community agencies to review 

the acquisition, use, and dissemination of Section 702 information; 

(3) requires the Inspector General of the Intelligence Community to 

review the acquisition, use, and dissemination of Section 702 information and evaluate its impact on the privacy rights of U.S. citizens; and (4) requires the Inspector General to produce and publicly release an unclassified report of its findings. 

First of all, by shortening the extension of the Title VII provisions to less than three years, Congress fails to provide needed certainty and predictability to law enforcement and counterterrorism 

officials. The Majority argues that in shortening the sunset to June 

1, 2015, it provides ‘‘Congress with the opportunity to consider 

these important surveillance provisions in a comprehensive manner’’ with other expiring provisions of FISA—sections 206 and 215 

of the USA PATRIOT Act (the ‘‘roving wiretap’’ and ‘‘business 

records’’ provisions) and section 6001(a) of the Intelligence Reform 

and Terrorism Protection Act (the ‘‘lone wolf’’ provision).11 While 

addressing the extension of these statutes together may offer some 

convenience, it is problematic. 

By aligning the expiration of the FAA with expiring provisions 

of the USA PATRIOT Act, we run the risk of failing to authorize 

not one, but two sets of vital national security tools. Such risks and 

unpredictability factor into how intelligence and counter-terrorism 

operations are designed. If those charged with protecting our naVerDate Mar 15 2010 22:55 Sep 26, 2012 Jkt 019010 PO 00000 Frm 00020 Fmt 6604 Sfmt 6602 E:\HR\OC\SR229.XXX SR229

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12 Id. at 4. 13 Id. at 7. 14Senator Patrick J. Leahy, ‘‘Opening Statement, Executive Business Meeting,’’ (July 19, 

2012), available at: http://www.leahy.senate.gov/press/senate-judiciary-committee-approvesleahy-authored-substitute-amendment-to-reauthorization-of-fisa-amendments-act. 15 50 U.S.C. § 1881a(1)(2) (2006). 

tional security are concerned with whether such a valuable tool will 

disappear in the middle of an operation, they may choose to forego 

the utilization of the tool and apply their resources elsewhere by 

using less effective, but more stable techniques. Further, by focusing on a host of national security tools at once, as opposed to in 

alternating authorization cycles, it limits the focus and scrutiny 

that is placed on each individual provision, potentially weakening 

the current level of oversight provided to these tools. 

The majority’s report itself provides an example of the danger of 

attempting to reauthorize differing tools at the same time. The report—deliberately or not—obfuscates the crucial differences between Title VII of FISA and other parts of the statute. In describing the activities conducted under Section 702, the report uses the 

loaded phrase, ‘‘domestic electronic surveillance.’’ 12 This phrase implies that the U.S. government intentionally collects, without a 

warrant, domestic communications of U.S. persons under Section 

702. It does not. The Section 702 program targets non-U.S. persons 

who are located abroad. At the most, it would only incidentally collect an international communication of a U.S. person if that U.S. 

person happened to communicate with a targeted person who is 

outside the United States. Nevertheless, the canard that Title VII 

is a ‘‘domestic surveillance program’’ directed at U.S. citizens and 

not requiring warrants, in violation of the Constitution, is widespread. Title VII has a different purpose and legal basis than those 

domestic surveillance provisions authorized elsewhere in the statute. Therefore, mixing together discussion of these different tools 

only confuses and complicates dispassionate oversight of each one. 

Neither this Committee, the SSCI, nor the Administration has 

found instances where the expiring provisions have been intentionally or systematically misused. As the SSCI Chairman reported 

in the Committee report, ‘‘Through four years of oversight, the 

Committee has not identified a single case where a government official engaged in a willful effort to circumvent or violate the law.’’ 13

In fact, Chairman Leahy himself has admitted, ‘‘I do not believe 

that there is any evidence that the law has been abused, or that 

the communications of U.S. persons are being intentionally targeted.’’ 14 Given the robust oversight in place, a shortened sunset 

date aligning multiple national security authorizations creates instability, provides no benefits, and potentially weakens the level of 

scrutiny the provisions are given in alternating authorization cycles. 

Secondly, we believe that the law as currently authorized contains significant oversight and review by the various Inspectors 

General. Section 702(1)(2) specifically authorizes ‘‘[t]he Inspector 

General of the Department of Justice and the Inspector General of 

each element of the intelligence community authorized to acquire 

foreign intelligence information under [the FAA]’’ the authority to 

review compliance with the law.15 Nowhere in this authorization 


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16FAA Sunsets Extension Act of 2012, S. Rep. No. 112–174, at 11 (2012) (majority report). 

are the Inspectors General limited to a single review. In fact, while 

the Inspector General for the Department of Justice just issued the 

first compliance report on Section 702 on September 12, 2012, 

nothing in the statute precludes the Inspector General from continuing to review compliance with Section 702 in the future. 

The current authorization for the Inspectors General is in line 

with the general mission of Inspectors General, namely, identifying 

fraud, waste, and abuse within a government agency. The substitute amendment would deviate from this current authorization 

and would instead elevate the role of the Inspectors General from 

independent watchdog to that of potential policy maker. For example, the substitute amendment would delegate decisions about what 

constitutes ‘‘privacy’’ to the Inspectors General authorizing them to 

make value judgments about the worth of the Section 702 foreign 

intelligence collected as compared to the Inspector General’s view 

of privacy interests. The amendment never defines ‘‘privacy,’’ an inherently vague and broad term that would be left to the Inspector 

General to define as he preferred based on his understanding of its 

meaning. This is beyond both the authority and capability of an Inspector General. Policy analysis should be left to policymakers. In 

particular, determining the relative worth of intelligence information with potentially competing concepts of ‘‘privacy’’ should be the 

role of Congress. We cannot outsource our responsibility for making 

such determinations to others. We have all the information necessary to make such determinations, and leaving it to someone else 

is abandoning our responsibilities. In fact, the process of reauthorizing the legislation has enabled the Committee to investigate this 

very subject. 

Thirdly, the substitute amendment requires the Inspector General to issue an ‘‘unclassified summary of the findings of [the] comprehensive report’’ 16 the amendment authorizes. While we agree 

that transparency is the hallmark of a good and open government, 

national security programs such as those authorized under FAA 

deal with our nation’s most sensitive information used to protect 

American lives. If the Inspector General were to issue an unclassified report based upon a review of classified information, the resulting report would be so heavily redacted that it would be incomprehensible and of little use to those who would seek to review it. 

There would be no context, no facts, and no application of facts to 

law. Such a report would be of no value or utility to the American 

people because the basis of any conclusion would be redacted. The 

report would raise more questions than it answers—which is perhaps the ultimate goal of such a provision. 

There were a number of additional amendments offered by Minority members of the Committee that were debated and voted on 

during the Committee’s executive business meeting. These amendments dealt with important national security topics including the 

criminal penalties associated with weapons of mass destruction, 

criminalizing rewards for facilitating international terrorism, disclosure of memoranda authorizing the targeted killing of United 

States citizens abroad, an audit of federal criminal wiretap applications, and Congressional notification for targeted killing of United 


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17See The USA PATRIOT Act Sunset Extension Act of 2011, S. Rep. No. 112–13, at 21 (2011) 

(adopting an amendment by Senator Grassley adding the death penalty as a punishment for 

certain crimes involving weapons of mass destruction). 18See Joanna Anderson, Surveillance Authority Extension Gets Senate Panel’s Support, Cong. 

Quarterly, July 19, 2012, available at http://www.cq.com/doc/committees2012071900298886?wr=eFF6U1QqRXM3azFlbndPUmNaS3c2dw (noting that ‘‘Durbin initially 

voted against advancing the bill to the full Senate, but [later] relented . . .’’). 19 Id. 20FISA Amendments Act Reauthorization Act of 2012, H.R. 5949, 112th Cong. (2012). 

States citizens abroad. Unfortunately, aside from amendments offered by Senator Kyl and Senator Lee, all amendments offered by 

the Minority members were subject to motions to table. This decision by members of the Majority to move to table amendments offered by the Minority is troubling and a break from the usual Committee practice to vote on amendments dealing with complex and 

difficult subject matters. 

Instead, Majority members argued that amendments should be 

germane and relevant to the underlying legislation in order to obtain an up or down vote. Each of these amendments dealt with important and pressing national security matters and should have received an open and fair debate. At least one of these amendments 

had previously passed the Committee on a bipartisan voice vote 

during debate of the extension of expiring provisions of the USA 

PATRIOT Act.17 It is imperative that these issues receive an open 

and fair debate in the Committee and it is concerning that these 

amendments were subjected to a germaneness and relevance standard, especially given the fact that the Majority Leader has routinely prevented Minority senators from offering and debating important topics on the Senate floor. 

Finally, it is worth noting that the Majority’s Committee Report 

fails to accurately detail the events that transpired on the afternoon of July 19, 2012, when the vote on final passage of S. 3276, 

the FAA Sunsets Extension Act, as amended, occurred. The Majority’s description notes that the final tally of votes was 10 Yeas and 

8 Nays. However, during the initial roll call vote the final tally was 

initially 9 Yeas and 9 Nays, with Senator Durbin voting against S. 

3276 as amended.18 However, after the Chairman asked if any 

member wished to change his or her vote, Senator Durbin stated 

that while Chairman Leahy’s bill was a ‘‘positive step forward’’ and 

still ‘‘needs a lot of work,’’ he ultimately changed his vote in order 

for the bill to be reported to the Senate floor.19

CONCLUSION

We agree with the thirteen bi-partisan members of the SSCI that 

this important piece of national security legislation should pass 

without amendment and without delay. We also agree with the 301 

members of the House of Representatives who voted on September 

12, 2012, to extend the FAA, without amendment, through December 31, 2017.20 We disagree with substitute amendment adopted by 

the Majority as it makes unnecessary changes to the statute that 

do little more than risk the necessary reauthorization of these authorities. Simply put, the FAA has and will continue to provide 

vital foreign intelligence information necessary for the Nation’s security. Extending the expiring provisions without amendment proVerDate Mar 15 2010 22:55 Sep 26, 2012 Jkt 019010 PO 00000 Frm 00023 Fmt 6604 Sfmt 6602 E:\HR\OC\SR229.XXX SR229

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vides the operational continuity that agents on the ground, at home 

and abroad, need and deserve. 

CHARLES E. GRASSLEY. ORRIN G. HATCH. JON KYL. JEFF SESSIONS. LINDSEY GRAHAM. JOHN CORNYN. TOM COBURN. 

IX. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S.3276, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

TITLE 50—WAR AND NATIONAL 

DEFENSE 

* * * * * * * 

CHAPTER 36—FOREIGN INTELLIGENCE 

SURVEILLANCE ACT 

SUBCHAPTER VI—ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE UNITED STATES 

Section 702. Procedures for targeting certain persons outside the United States other than United States 

persons. 

(1) ASSESSMENTS AND REVIEWS.— 

(1) SEMIANNUAL ASSESSMENT.—Not less frequently than once 

every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) 

and the guidelines adopted in accordance with subsection (f) and 

shall submit each assessment to— 

(A) the Foreign Intelligence Surveillance Court; and 

(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate 

resolution— 

(i) the congressional intelligence committees; and 

(ii) the Committees on the Judiciary of the House of 

Representatives and the Senate. 

(2) AGENCY ASSESSMENT.—The Inspector General of the Department of Justice and the Inspector General of each element of 

the intelligence community øauthorized to acquire foreign intelligence information under subsection (a)¿ with targeting or minimization procedures approved under this section, with respect to 

the department or element of such Inspector General— 


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25 

(A) are authorized to review compliance with the targeting and minimization procedures adopted in accordance 

with subsections (d) and (e) and the guidelines adopted in 

accordance with subsection (f); 

(B) with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United Statesperson identity and the number of United States-person 

identities subsequently disseminated by the element concerned in response to requests for identities that were not 

referred to by name or title in the original reporting; 

(C) with respect to acquisitions authorized under subsection (a), shall review the number of targets that were 

later determined to be United States persons or located in 

the United States, and to the extent possible, whether 

communications of such targets were reviewed; and 

(D) shall provide each øsuch review¿ review conducted 

under this paragraph to— 

(i) the Attorney General; 

(ii) the Director of National Intelligence; øand¿ 

(iii) the Inspector General of the Intelligence Community; and 

ø(iii)¿ (iv) consistent with the Rules of the House of 

Representatives, the Standing Rules of the Senate, 

and Senate Resolution 400 of the 94th Congress or 

any successor Senate resolution— 

(I) the congressional intelligence committees; and 

(II) the Committees on the Judiciary of the House of 

Representatives and the Senate. 

(3) INSPECTOR GENERAL OF THE INTELLIGENCE COMMUNITY

REVIEW.— 

(A) IN GENERAL.—The Inspector General of the Intelligence Community is authorized to review the acquisition, 

use, and dissemination of information acquired under subsection (a) in order to review compliance with the targeting 

and minimization procedures adopted in accordance with 

subsections (d) and (e) and the guidelines adopted in accordance with subsection (f), and in order to conduct the review required by subparagraph (B). 

(B) MANDATORY REVIEW.—The Inspector General of the 

Intelligence Community shall review the procedures and 

guidelines developed by the Intelligence Community to implement this section, with respect to the protection of the 

privacy rights of United States persons, including— 

(i) an evaluation of the limitations outlined in subsection (b), the procedures approved in accordance with 

subsections (d) and (e), and the guidelines outlined in 

subsection (f), with respect to the protection of the privacy rights of United States persons; and 

(ii) an evaluation of the circumstances under which 

the contents of communications acquired pursuant to 

subsection (a) may be searched in order to review the 

communications of particular United States persons. 


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(C) CONSIDERATION OF OTHER REVIEWS AND ASSESS- MENTS.—The review conducted under subparagraph (B) 

should take into consideration, to the extent relevant and 

appropriate, any reviews and assessments that have been 

completed or are being undertaken under this section. 

(D) REPORT.—Not later than December 31, 2014, the Inspector General of the Intelligence Community shall submit 

a report regarding the review conducted under subparagraph (B) to— 

(i) the Attorney General; 

(ii) the Director of National Intelligence; and 

(iii) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and 

Senate Resolution 400 of the 94th Congress or any successor Senate resolution— 

(I) the congressional intelligence committees; and 

(II) the Committees on the Judiciary of the 

House of Representatives and the Senate. 

(E) PUBLIC REPORTING OF FINDINGS AND CONCLUSIONS.— In a manner consistent with the protection of the national 

security of the United States, and in unclassified form, the 

Inspector General of the Intelligence Community shall 

make publicly available a summary of the findings and 

conclusions of the review conducted under subparagraph 

(B). 

(4) ø(3)¿ ANNUAL REVIEW.— (A) REQUIREMENT TO CONDUCT.—The head of each element of the intelligence community øconducting an acquisition authorized under subsection (a)¿ with targeting or 

minimization procedures approved under this section shall 

conduct an annual review to determine whether there is 

reason to believe that foreign intelligence information has 

been or will be obtained from øthe acquisition¿ acquisitions authorized under subsection (a). øThe annual review¿ 

As applicable, the annual review shall provide, with respect to acquisitions authorized under subsection (a)— 

(i) an accounting of the number of disseminated intelligence reports containing a reference to a United 

States-person identity; 

(ii) an accounting of the number of United Statesperson identities subsequently disseminated by that 

element in response to requests for identities that 

were not referred to by name or title in the original 

reporting; 

(iii) the number of targets that were later determined to be United States persons or located in the 

United States and, to the extent possible, whether 

communications of such targets were reviewed; and 

(iv) a description of any procedures developed by the 

head of such element of the intelligence community 

and approved by the Director of National Intelligence 

to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the 


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27 

acquisitions authorized under subsection (a) acquired 

the communications of United States persons, and the 

results of any such assessment. 

* * * * * * * 

FISA Amendments Act of 2008 

Public Law No. 110–261 

50 U.S.C. 1881 note 

Section 403. Repeals. 

(b) FISA AMENDMENTS ACT OF 2008.— 

(1) IN GENERAL.—Except as provided in section 404, effective 

øDecember 31, 2012¿ June 1, 2015, 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¿ June 1, 2015— (A) the table of contents in the first section of such Act 

(50 U.S.C. 1801 et seq.) is amended by striking the items 

related to title VII; 

(B) except as provided in section 404, section 601(a)(1) of 

such Act (50 U.S.C. 1871(a)(1)) is amended to read as such 

section read on the day before the date of the enactment 

of this Act; and 

(C) except as provided in section 404, section 

2511(2)(a)(ii)(A) of title 18, United States Code, is amended by striking ‘‘or a court order pursuant to section 704 of 

the Foreign Intelligence Surveillance Act of 1978’’. 

Section 404. Transition Procedures. 

(b) TRANSITION PROCEDURES FOR FISA AMENDMENTS ACT OF

2008 PROVISIONS. 

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

2015.—Notwithstanding any other provision of this Act, any 

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

Foreign Intelligence Surveillance Act of 1978, as amended by 

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

* * * * * * * 


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