59–010 

Calendar No. 504 

114TH CONGRESS REPORT " ! SENATE 2d Session 114–277 

INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 

2017 

JUNE 15, 2016.—Ordered to be printed 

Mr. BURR, from the Select Committee on Intelligence, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND MINORITY VIEWS 

[To accompany S. 3017] 

The Select Committee on Intelligence, having considered an 

original bill (S. 3017) to authorize appropriations for fiscal year 

2017 for intelligence and intelligence-related activities of the 

United States Government, the Community Management Account, 

and the Central Intelligence Agency Retirement and Disability System, and for other purposes, reports favorably thereon and recommends that the bill do pass. 

CLASSIFIED ANNEX TO THE COMMITTEE REPORT

On February 9, 2016, acting pursuant to Section 364 of the Intelligence Authorization Act for Fiscal Year 2010 (Public Law 111 

259), the Director of National Intelligence (DNI) publicly disclosed 

that the President’s aggregate request for the National Intelligence 

Program for Fiscal Year 2017 is $53.5 billion. Other than for limited unclassified appropriations, primarily the Intelligence Community Management Account, the classified nature of United States 

intelligence activities precludes any further disclosure, including by 

the Committee, of the details of its budgetary recommendations. 

Accordingly, the Committee has prepared a classified annex to this 

report that contains a classified Schedule of Authorizations. The 

classified Schedule of Authorizations is incorporated by reference in 

the Intelligence Authorization Act (the ‘‘Act’’) and has the legal staVerDate Sep 11 2014 03:06 Jun 18, 2016 Jkt 059010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR277.XXX SR277

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tus of public law. The classified annex is made available to the 

Committees on Appropriations of the Senate and the House of Representatives and to the President. It is also available for review by 

any Member of the Senate subject to the provisions of Senate Resolution 400 of the 94th Congress (1976). 

SECTION-BY-SECTION ANALYSIS AND EXPLANATION

The following is a section-by-section analysis and explanation of 

the Intelligence Authorization Act for Fiscal Year 2017 that is 

being reported by the Committee. 

TITLE I—INTELLIGENCE ACTIVITIES

Section 101. Authorization of appropriations 

Section 101 lists the United States Government departments, 

agencies, and other elements for which the Act authorizes appropriations for intelligence and intelligence-related activities for Fiscal Year 2017. 

Section 102. Classified Schedule of Authorizations 

Section 102 provides that the details of the amounts authorized 

to be appropriated for intelligence and intelligence-related activities for Fiscal Year 2017 are contained in the classified Schedule 

of Authorizations and that the classified Schedule of Authorizations 

shall be made available to the Committees on Appropriations of the 

Senate and House of Representatives and to the President. 

Section 103. Intelligence Community Management Account 

Section 103 authorizes appropriations in the amount of 

$568,596,000 for the Intelligence Community Management Account 

(ICMA) of the Office of the Director of National Intelligence for the 

elements within the ICMA for Fiscal Year 2017. 

TITLE II—CENTRAL INTELLIGENCE AGENCY RETIREMENT AND

DISABILITY SYSTEM

Section 201. Authorization of appropriations 

Section 201 authorizes appropriations in the amount of 

$514,000,000 for Fiscal Year 2017 for the Central Intelligence 

Agency Retirement and Disability Fund. 

TITLE III—GENERAL INTELLIGENCE COMMUNITY MATTERS

Section 301. Restriction on conduct of intelligence activities 

Section 301 provides that the authorization of appropriations by 

the Act shall not be deemed to constitute authority for the conduct 

of any intelligence activity that is not otherwise authorized by the 

Constitution or laws of the United States. 

Section 302. Increase in employee compensation and benefits authorized by law 

Section 302 provides that funds authorized to be appropriated by 

the Act for salary, pay, retirement, and other benefits for federal 

employees may be increased by such additional or supplemental 

amounts as may be necessary for increases in compensation or benefits authorized by law. 


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Section 303. Support to nonprofit organizations assisting intelligence community employees 

Section 303 permits the Director of National Intelligence (DNI) 

to engage in fundraising in an official capacity for the benefit of 

nonprofit organizations that provide support to surviving family 

members of a deceased employee of an element of the Intelligence 

Community or otherwise provide support for the welfare, education, or recreation of Intelligence Community employees, former 

employees, or their family members. Section 303 further requires 

that the DNI and the Director of the Central Intelligence Agency 

notify the congressional intelligence committees at least thirty days 

before they engage in such fundraising (or at the time they decide 

to participate, whichever is earlier). 

Section 304. Promotion of science, technology, engineering, and 

math education in the intelligence community 

Section 304 requires the Director of National Intelligence to submit a five-year investment strategy for outreach and recruiting efforts in the fields of science, technology, engineering, and mathematics (STEM), to include cybersecurity and computer literacy. 

Section 304 further requires elements of the Intelligence Community to submit STEM investment plans supporting this strategy for 

each of the fiscal years 2018 through 2022, along with the materials justifying the budget request of each element for these STEM 

recruiting and outreach activities. 

Section 305. Retention of employees of the intelligence community 

who have science, technology, engineering, or math expertise 

Section 305 authorizes a new payscale to permit salary increases 

for employees in the Intelligence Community with STEM backgrounds. Section 305 also requires notifications to individual employees if a position is removed from this new payscale. Section 305 

further requires the head of each Intelligence Community element 

to submit to the congressional intelligence committees a report on 

the new rates of pay and number of positions authorized under this 

payscale. 

Section 306. Annual review and report on interactions between the 

intelligence community and entertainment industry 

Section 306 requires the Director of National Intelligence to provide an annual report to the congressional intelligence committees 

detailing interactions between the Intelligence Community and the 

entertainment industry. Section 306 also requires the report to include a description of the nature, duration, costs, and results of 

each engagement, as well as a certification that each engagement 

did not result in a disclosure of classified information and whether 

any information was declassified for the disclosure. Section 306 further requires that before an Intelligence Community element may 

engage with the entertainment industry, the head of that element 

must approve the proposed engagement and notify the congressional intelligence committees at least thirty days in advance of 

why the engagement would further the Intelligence Community 

element’s interests. 

These engagements, some of which have been described in partially declassified inspector general reports, cost taxpayer dollars, 


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raise potential ethics concerns, increase the risk of disclosure of 

classified information, and consume the time and attention of Intelligence Community personnel responsible for United States national security. Neither the production of entertainment nor the 

self-promotion of Intelligence Community entities are legitimate 

purposes for these engagements. 

Section 307. Protections for independent inspectors general of elements of the intelligence community 

Section 307 requires the Inspector General for each Intelligence 

Community element to implement a policy that prohibits Office of 

Inspector General senior employees from being involved in matters 

that affect the interest of an organization within an element for 

which the employee worked for at least two years, and that prohibits Office of Inspector General non-senior employees from being 

involved in matters that affect the interest of an organization within an agency for which the employee worked for at least one year. 

Section 307 further prohibits the Director of National Intelligence 

from requiring an employee of an Office of Inspector General to rotate to a position in the element for which such office conducts 

oversight. 

Section 308. Congressional oversight of policy directives and guidance 

Section 308 requires the Director of National Intelligence to submit to the congressional intelligence committees notifications and 

copies of any classified or unclassified Presidential Policy Directive, 

Presidential Policy Guidance, or other similar policy document 

issued by the President which involves the Intelligence Community, within the specified timeframes. Section 308 further requires 

the Director to notify the congressional intelligence committees of 

guidance to implement such policies. 

Section 309. Notification of memorandums of understanding 

Section 309 requires the head of each element of the Intelligence 

Community to submit to the congressional intelligence committees 

copies of each memorandum of understanding or other agreement 

regarding intelligence activities entered into with another entity of 

the federal government within specified timeframes. 

Section 310. Intelligence community assistance for nationally significant critical infrastructure 

Section 310 requires the Director of National Intelligence and the 

Secretary of Homeland Security to establish a program to provide 

assistance and support to certain critical infrastructure entities, on 

a voluntary basis, for the purpose of reducing the likelihood of catastrophic harm resulting from a cyber attack. 


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TITLE IV—MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE

COMMUNITY

SUBTITLE A—OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

Section 401. Designation of the Director of the National Counterintelligence and Security Center 

Section 401 renames the National Counterintelligence Executive 

as the ‘‘National Counterintelligence and Security Center,’’ with 

conforming amendments. 

SUBTITLE B—OTHER ELEMENTS

Section 411. Enhanced death benefits for employees of the Central 

Intelligence Agency 

Section 411 authorizes the Director of the Central Intelligence 

Agency to pay death benefits substantially similar to those authorized for members of the Foreign Service, and requires the Director 

to submit implementing regulations to the congressional intelligence committees. 

Section 412. Pay and retirement authorities of the Inspector General 

of the Central Intelligence Agency 

Section 412 amends the Central Intelligence Agency Act of 1949 

to authorize the Inspector General (IG) of the Central Intelligence 

Agency (CIA) to consider certain positions as law enforcement officers for purposes of calculating retirement eligibility and entitlements under chapters 83 and 84 of title 5, United States Code, if 

such officer or employee is appointed to a position with responsibility for investigating suspected offenses against the criminal laws 

of the United States. Section 412 may not be construed to confer 

on the IG of the CIA, or any other officer or employee of the CIA, 

any police or law enforcement or internal security functions or authorities. 

Section 413. Prohibition on the Director of the National Security 

Agency serving contemporaneously as a commander of a combatant command 

Section 413 amends the National Security Act of 1959, 50 U.S.C. 

§ 3602(a), to prohibit the Director of the National Security Agency 

from concurrently serving as the commander of a unified combatant command within the Department of Defense, as defined in 10 

U.S.C. § 161(c). 

Section 414. Enhancing the technical workforce for the Federal Bureau of Investigation 

Section 414 requires the Federal Bureau of Investigation (FBI) to 

produce a comprehensive strategic workforce report to demonstrate 

progress in expanding initiatives to effectively integrate information technology expertise in the investigative process. Section 414 

further requires the report to include: (1) progress on training, recruitment, and retention of cyber-related personnel; (2) an assessment of whether FBI officers with these skill sets are fully integrated in the FBI’s workforce; (3) the FBI’s collaboration with the 

private sector on cyber issues; and (4) an assessment of the utility 

of reinstituting and leveraging the FBI Director’s Advisory Board. 


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TITLE V—MATTERS RELATING TO FOREIGN COUNTRIES

Section 501. Committee to counter active measures by the Russian Federation to exert covert influence over peoples and governments. 

Section 501 requires the President to establish an interagency 

committee to counter active measures by the Russian Federation 

that constitute Russian actions to exert covert influence over peoples and governments. 

Section 502. Limitation on travel of accredited diplomats of the 

Russian Federation in the United States from their diplomatic 

post 

Section 502 requires the Director of the Federal Bureau of Investigation to certify that Russian diplomats have followed proper 

travel notification procedures before the Secretary of State can permit Russian diplomats’ travel in excess of 50 miles outside of their 

diplomatic posts. 

Section 503. Study and report on enhanced intelligence and information sharing with Open Skies Treaty member states 

Section 503 requires the Director of National Intelligence to conduct a study to determine the feasibility of creating an intelligence 

sharing arrangement and database among parties to the Open 

Skies Treaty with higher frequency, quality, and efficiency. Section 

503 also requires the Director to issue a report as to how the Russian Federation is using Open Skies Treaty collection, a list of the 

covered parties that have been updated with this information, and 

an analysis of the benefits the United States derives by being a 

party to the treaty as well as the potential implications for covered 

state parties if the United States should withdraw from the treaty. 

Section 504. Reviews on cooperation between the intelligence community and foreign intelligence entities 

Section 504 requires the Director of National Intelligence to review the number, scope, purpose, benefits, and risks of the relationships between the Intelligence Community and foreign intelligence 

entities and to report to the congressional intelligence committees 

on specified findings. Section 504 further requires the Director of 

the Central Intelligence Agency to review its coordination of the relationships between the elements of the Intelligence Community 

and foreign intelligence entities and report to the congressional intelligence committees on specified findings. 

TITLE VI—PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Section 601. Information on activities of the Privacy and Civil Liberties Oversight Board 

Section 601 requires the Privacy and Civil Liberties Oversight 

Board to keep Congress and relevant Intelligence Community elements fully and currently informed of its activities. 

Section 602. Appointment of staff of the Privacy and Civil Liberties 

Oversight Board 

Section 602 amends the Intelligence Reform and Terrorism Prevention Act of 2004, 42 U.S.C. § 2000ee(j), to require that, in the 


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absence of a chairman, the members of the Privacy and Civil Liberties Oversight Board (the ‘‘Board’’) may, by unanimous vote, exercise the chairman’s authority to appoint and fix the compensation 

of Board personnel. The Committee appreciates the professionalism 

of the Board’s staff. However, the Committee is concerned that the 

staff of the Board may lack an appropriate balance in expertise and 

that this imbalance may impede the efforts of the Board to execute 

its statutory mandate to consider the appropriate balance between 

counterterrorism efforts of the United States and the privacy and 

civil liberties as guaranteed by the United States Constitution. 

Therefore, the Committee strongly recommends that the Board 

make every effort to recruit, hire or appoint, and retain staff, employees, detailees, experts, and consultants who have relevant expertise and experience in both efforts to protect the United States 

from terrorism and with privacy and civil liberties as guaranteed 

by the United States Constitution. 

Section 603. Protection of the privacy and civil liberties of United 

States persons 

Section 603 ensures that the Privacy and Civil Liberties Oversight Board (the ‘‘Board’’) is focused on the privacy and civil liberties of United States persons when conducting its analysis and 

review of United States counterterrorism efforts. 

The Committee notes that the August 2004 Executive Order 

13353 provided the foundation for the Board by creating an entity 

within the Department of Justice that would ‘‘protect the legal 

rights of all Americans, including freedoms, civil liberties, and information privacy guaranteed by Federal law, as the President may 

direct.’’ 

Similarly, the Committee recognizes that the Intelligence Reform 

and Terrorism and Prevention Act of 2004 (IRTPA), 42 U.S.C. 

§ 2000ee(c)(1) and (2) states that the Board ‘‘shall (1) analyze and 

review actions the executive branch takes to protect the Nation 

from terrorism, ensuring that the need for such actions is balanced 

with the need to protect privacy and civil liberties; and (2) ensure 

that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related 

to efforts to protect the Nation against terrorism.’’ 

That same language is repeated in the report to accompany 

IRTPA, H. Rept. 108–796, 108th Cong. 2d Sess. (Dec. 7, 2004) (the 

Board ‘‘is charged with ensuring that privacy and civil liberties 

concerns are appropriately considered in the implementation of 

laws, regulations, and policies of the government related to efforts 

to protect the Nation against terrorism’’). 

Notably, Senator Collins, the original sponsor of IRTPA, emphasized this intent on the Senate Floor, stating that the transparency 

resulting from the Board’s activities ‘‘helps to give confidence to the 

American people that the protection of their civil liberties and privacy is being addressed as we take actions to further protect our 

Nation from terrorism.’’ Cong. Rec. S11974 (daily ed. Dec. 8, 2004) 

(statement of Senator Collins). 

The Committee believes it is important for the Board to consider 

the privacy and civil liberties of U.S. Persons first and foremost 

when conducting its analysis and review of United States counterterrorism efforts. 


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TITLE VII—MATTERS RELATING TO UNITED STATES NAVAL STATION, 

GUANTANAMO BAY, CUBA

Section 701. Declassification review of information on Guantanamo 

detainees and mitigation measures taken to monitor the individuals and prevent future attacks 

Section 701 requires the Director of National Intelligence to complete a declassification review of information on the past terrorist 

activities of detainees transferred or released from Guantanamo, 

make resulting declassified information publicly available, and submit to the congressional intelligence committees a report setting 

forth the results of the declassification review and, if any information covered by the review was not declassified, a justification for 

the determination not to declassify such information. Section 701 

also sets the schedule for such reviews and requires that the reviews and reports include mitigation measures being taken by the 

country where the individual has been transferred or released to 

monitor and prevent the individual from carrying out future terrorist activities. Section 701 further defines past terrorist activities 

to include terrorist organization affiliations, terrorist training, role 

in terrorist attacks, responsibility for the death of United States 

citizens or members of the Armed Forces, any admission thereof, 

and a description of the intelligence supporting the past terrorist 

activities, including corroboration, confidence level, and any dissent 

or reassessment by the Intelligence Community. 

Section 702. Limitation on transfer of Guantanamo detainees to foreign countries 

Section 702 prohibits an individual detained at Guantanamo 

from being transferred or released to a foreign country until after 

the date that the Director of National Intelligence certifies that an 

intelligence driven threat monitoring system has been established 

and is sufficient to mitigate the risk of such individuals reengaging 

in terrorism or posing a threat to United States persons or national 

security, and that the Intelligence Community has the capability to 

monitor all such individuals by appropriate means to provide assessments on their activities as required. 

TITLE VIII—REPORTS AND OTHER MATTERS

Section 801. Submission of intelligence related information in certain reports by the Secretary of Defense 

Section 801 prohibits the Secretary of Defense from using waiver 

authority under 10 U.S.C. § 119(e)(1) to omit reporting intelligence 

or intelligence-related activities in the annual report requirements. 

Section 802. Cyber Center for Education and Innovation Home of 

the National Cryptologic Museum 

Section 802 amends 10 U.S.C. § 449 to enable the establishment 

of a Cyber Center for Education and Innovation Home of the National Cryptologic Museum. 

Section 803. Counterintelligence access to telephone toll and 

transactional records. 

Section 803 makes a conforming edit to 18 U.S.C. § 2709, to clarify that the government is permitted to obtain non-content elecVerDate Sep 11 2014 03:06 Jun 18, 2016 Jkt 059010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR277.XXX SR277

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tronic communications transactional records (commonly known as 

‘‘ECTRs’’) from wire or electronic communication service providers 

in national security investigations upon proper certification of the 

Director of the Federal Bureau of Investigation (FBI) or the Director’s designee. 

In 1986, Congress enacted Section 2709 to allow the FBI to request telephone subscriber information, toll billing records, and 

electronic communications transactional records in national security investigations and imposed a duty on wire and electronic communication service providers to comply with such requests. This 

duty has remained unchanged since Section 2709’s enactment. 

Unfortunately, when Congress amended the required certification language in Section 2709(b) in 1993, it inadvertently omitted 

electronic communications transactional records among the list of 

records that required a certification from the FBI. Since Section 

2709(a) still imposed a duty on providers to comply with requests 

for electronic communications transactional records, the FBI continued to issue requests for these transactional records and the 

providers continued to comply. 

Beginning in 2009, certain major electronic communications service providers began refusing to comply with FBI requests for electronic communications transactional records under Section 2709. 

The service providers justified their non-compliance on the absence 

of a specific mention of ‘‘electronic communications transactional 

records’’ in the required certification provision of Section 2709(b). 

The non-compliance of certain companies made it much more difficult for the FBI to obtain these electronic communications transactional records. Instead of being able to rely upon a properly-certified request for electronic communications transactional records 

under Section 2709—which could be issued by the FBI in a matter 

of days—the FBI has been required to seek the very same electronic communications transactional records from non-compliant 

providers through the use of a business records court order under 

the Foreign Intelligence Surveillance Act, a process that often 

takes over a month. Notably, a 2014 Department of Justice Inspector General Report states that, after certain providers began to 

refuse to comply with FBI requests for electronic communications 

transactional records, a request under Section 2709 that had taken 

‘‘a matter of hours if necessary, now takes about 30–40 days to 

accomplish[.]’’ United States Dep’t of Justice, Office of Inspector 

General, A Review of the Federal Bureau of Investigation’s Use of 

National Security Letters: Assessment of Progress in Implementing 

Recommendations and Examination of Use in 2007 through 2009, 

at 73 (August 2014). 

In 2010, the Department of Justice began seeking a legislative 

clarification of Section 2709 to address the problem caused by the 

non-compliant providers. Director Comey testified at a Senate Judiciary Committee hearing in December 2015 that a change to the 

electronic communications transactional records provision 

would be enormously helpful. . . . It would save us a tremendous amount of work hours if we could fix that, without any compromise to anyone’s civil liberties or civil 

rights. Everybody who has stared at this has said, ‘‘that’s 

actually a mistake. We should fix that.’’ 


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Additionally, in response to a question posed at this Committee’s 

2016 Worldwide Threats hearing, Director Comey stated that the 

FBI needs 

[a clarification to the electronic communications transactional records provision] very much and it’s actually 

quite an ordinary fix that is necessary because what I believe is a typo in the 1993 statute that has led to some 

companies interpreting it in a way I don’t believe Congress 

ever intended. And so it is ordinary, but it affects our work 

in a very, very big and practical way. 

Director Comey also confirmed that it was a ‘‘top legislative priority’’ for the FBI. Thus, certain providers’ noncompliance is substantially impairing the FBI’s ability to conduct national security 

investigations. Because of this resulting operational impairment, 

the Administration initially requested the legislative clarification 

in 2010 for the Fiscal Year 2011 authorization bill. Similarly, on 

May 24, 2016, the Department of Justice reiterated in a formal 

written proposal to the Committee the Administration’s request for 

the legislative clarification to Section 2709. The current Administration has now twice requested that Congress clarify the technical 

error in Section 2709. Ultimately, the Committee approved an 

amendment to Section 2709(b), which also clarifies that ‘‘electronic 

communications transactional records’’ do not contain content. 

Section 804. Oversight of national security systems 

Section 804 amends 44 U.S.C. § 3557 to codify and strengthen existing roles and responsibilities with regard to the oversight of national security systems. 

Section 805. Joint facilities certification 

Section 805 requires that before an element of the Intelligence 

Community purchases, leases, or constructs a new facility that is 

20,000 square feet or larger, the head of that element must first 

certify that all prospective joint facilities have been considered, 

that it is unable to identify a joint facility that meets its operational requirements, and it must list the reasons for not participating in joint facilities in that instance. 

Section 806. Improvement of leadership and management of space 

activities 

Section 806 requires the Director of National Intelligence (DNI), 

in collaboration with the Secretary of Defense and the Chairman 

of the Joint Chiefs of Staff, to issue an update to the strategy for 

a comprehensive review of the United States national security 

overhead satellite architecture required in the Intelligence Authorization Act for Fiscal Year 2016. Section 806 requires the DNI, in 

coordination with the Secretary of Defense, to submit a plan to harmonize the Intelligence Community’s governance, operations, analysis, and collection activities related to space and counterspace 

under the oversight of a single official, to be appointed by the DNI, 

in consultation with the Secretary of Defense. Section 806 also requires the DNI to submit a workforce plan for space and 

counterspace operations, policy, acquisition, and analysis. Section 

806 further requires the Director of the National Reconnaissance 


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Office and the Commander of U.S. Strategic Command to submit 

a concept of operations and requirements documents for the Joint 

Interagency Combined Space Operations Center. 

Section 807. Advances in life sciences and biotechnology 

The Committee recognizes the rapid advancements in the life 

sciences and biotechnology and firmly believes that biology in the 

twenty-first century will transform the world as physics did in the 

twentieth century. 

The potential risks associated with these advancements are less 

clear. The posture of the Intelligence Community to follow and predict this rapidly changing landscape is a matter of concern recognizing the global diffusion and dual-use nature of life sciences and 

biotechnology along with the dispersed responsibility of the life 

sciences related issues across several National Intelligence Officer 

portfolios. 

Section 807 requires the Director of National Intelligence to brief 

the congressional intelligence committees on a proposed plan and 

actions to monitor advances in life sciences and biotechnology to be 

carried out by the Director. The Director’s plan should include, 

first, a description of the Intelligence Community’s approach to leverage the organic life science and biotechnology expertise both 

within and outside the Intelligence Community; second, an assessment of the current life sciences and biotechnology portfolio, the 

risks of genetic editing technologies, and the implications of these 

advances on future biodefense requirements; and, third, an analysis of organizational requirements and responsibilities to include 

potentially creating new positions. Section 807 further requires the 

Director to submit a written report and provide a briefing to the 

congressional intelligence committees on the role of the Intelligence 

Community in the event of a biological attack, including a technical 

capabilities assessment to address potential unknown pathogens. 

Section 808. Reports on declassification proposals 

Section 808 requires the Director of National Intelligence to provide the congressional intelligence committees with a report and 

briefing on the Intelligence Community’s progress in producing four 

feasibility studies undertaken in the course of the Intelligence 

Community’s fundamental classification guidance review, as required under Executive Order 13526. Section 808 further requires 

the Director to provide the congressional intelligence committees 

with a briefing, interim report, and final report on the final feasibility studies produced by elements of the Intelligence Community 

and an implementation plan for each initiative. 

Section 809. Improvement in government classification and declassification 

Section 809 requires Executive Branch agencies and departments 

to review their classification guidance documents every five years. 

Section 809 further requires the Director of National Intelligence 

to provide an annual written notification to the congressional intelligence committees certifying the creation, validation, or substantial modification (to include termination) of existing and proposed 

controlled access programs, and the compartments and subcompartments within each. 


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Section 810. Report on implementation of research and development 

recommendations 

Section 810 requires the Director of National Intelligence to conduct and provide to the congressional intelligence committees a 

current assessment of the Intelligence Community’s implementation of the recommendations issued in 2013 by the National Commission for the Review of the Research and Development (R&D) 

Programs of the Intelligence Community. 

Section 811. Report on Intelligence Community Research and Development Corps 

Section 811 requires the Director of National Intelligence to develop and brief the congressional intelligence committees on a plan, 

with milestones and benchmarks, to implement a R&D Reserve 

Corps, as recommended in 2013 by the bipartisan National Commission for the Review of the R&D Programs of the Intelligence 

Community, including any funding and potential changes to existing authorities that may be needed to allow for the Corps’ implementation. 

Section 812. Report on information relating to academic programs, 

scholarships, fellowships, and internships sponsored, administered, or used by the intelligence community 

Section 812 requires the Director of National Intelligence to submit to congressional intelligence committees a report on information that the Intelligence Community collects on certain academic 

programs, scholarships, and internships sponsored, administered, 

or used by the Intelligence Community. 

COMMITTEE COMMENTS

Commercial Geospatial Intelligence Strategy 

The Committee applauds the National Geospatial-Intelligence 

Agency (NGA) for issuing its October 2015 Commercial Geospatial 

Intelligence (GEOINT) Strategy, which states a goal of fostering a 

‘‘more diverse, resilient, agile, and responsive GEOINT program 

that provides seamless user access to the best mix of commercial 

GEOINT . . . to fulfill National System for Geospatial-Intelligence 

(NSG) and Allied System for Geospatial-Intelligence (ASG) mission 

needs.’’ The Committee also finds merit in the NGA’s ‘‘GEOINT 

Pathfinder’’ project, which seeks to maximize the use of unclassified and commercially available data sources that can be easily and 

rapidly shared with a variety of military, United States and allied 

government, and non-government customers, and supports the 

project’s continuation and expansion. 

The Committee commends the NGA for pursuing new methods of 

intelligence collection and analysis to inform, complement, and add 

to its support of warfighter requirements by looking to emerging 

commercial technology providers, including small satellite companies, which hold the promise of rapid technological innovation and 

potentially significant future cost savings to the U.S. taxpayer. The 

Committee further encourages the Director of the NGA to ensure 

sufficient funding is available to acquire new, unclassified sources, 

including commercial satellite imagery providing unprecedented 

global persistence, as well as products and services that provide inVerDate Sep 11 2014 03:06 Jun 18, 2016 Jkt 059010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR277.XXX SR277

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formation and context about change relevant to geospatial intelligence. The Committee also encourages the NGA to pursue new 

business models, including commercial acquisition practices, to enable the NGA’s access to data, products, and services in ways consistent with best commercial practices. 

The Committee fully supports the NGA’s course of action in 

partnering with the commercial GEOINT industry to meet future 

warfighter intelligence requirements, while recognizing the need to 

take appropriate steps to protect national security, and encourages 

the Director of the NGA and the Under Secretary of Defense for 

Intelligence to keep the Committee informed of their progress in 

implementing this strategy. In building future year budgets, the 

Committee strongly encourages the Department to ensure continued funding is provided for implementation through at least Fiscal 

Year 2021. 

Space launch facilities 

The Committee continues to believe it is critical to preserve a variety of launch range capabilities to support national security space 

missions. Spaceports or launch and range complexes may provide 

capabilities to reach mid-to-low or polar-to-high inclination orbits. 

The Committee believes an important component of this effort may 

be state-owned and operated spaceports that are commercially licensed by the Federal Aviation Administration, which leverage 

non-federal public and private investments to bolster U.S. launch 

capabilities. Additionally, the Committee believes that these facilities may be able to provide additional flexibility and resilience to 

the Nation’s launch infrastructure, especially as the nation considers concepts such as the reconstitution of satellites to address 

the growing foreign counterspace threat. The Committee notes recent testimony by the Chief of Staff of the U.S. Air Force, General 

Mark Welsh, who stated, 

As we look at this space enterprise and how we do it differently in the future, as we look more at disaggregation, 

microsats, cube sats, small sats, things that don’t have to 

go from a large launch complex all the time, I think proliferating launch complexes is probably going to be a natural outshoot of this. I think it’s commercially viable, it 

may be a way for companies to get into the launch business who could not afford to get into it or don’t see a future in it and for large national security space launches, 

but I think this has got to be part of the strategy that this 

whole national team puts together as we look to the future. 

Therefore, the Committee encourages the Intelligence Community, in partnership with the U.S. Air Force, to consider the role 

and contribution of spaceports or launch and range complexes to 

our national security space launch capacity, and directs the Office 

of the Director of National Intelligence, in consultation with the 

Department of Defense and the U.S. Air Force, to brief the Committee on their plans to utilize such facilities. 


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National reconnaissance office workforce optimization strategy 

The Committee has had longstanding interest in, and support 

for, a permanent government cadre to provide the National Reconnaissance Office (NRO) with a stable, expert acquisition workforce. 

The Committee applauds the substantial progress that the NRO 

has made in the past year in this regard. The Committee has parallel interests in providing the IC with flexibility to manage a 

multi-sector workforce and in continuing the reduction in the reliance on contractors. 

Therefore, the Committee directs the NRO to conduct a workforce review to optimize the mix between government civilians and 

contractors and report to the Committee with a strategy within 90 

days of enactment of this Act. 

Office of the Inspector General, Central Intelligence Agency 

The previous Inspector General of the CIA departed from the position on January 31, 2015. The President has not yet nominated 

a candidate for the Senate’s consideration. The Committee believes 

it is critical that the Office of the Inspector General (OIG) be headed by a Senate-confirmed officer fully able to exercise the authorities and independence provided the position in statute. 

COMMITTEE ACTION

On May 24, 2016, a quorum being present, the Committee met 

to consider the bill and amendments. The Committee took the following actions: 

Votes on amendments to committee bill, this report and the classified annex 

By unanimous consent, the Committee made the Chairman and 

Vice Chairman’s bill, together with the classified annex, the base 

text for purposes of amendment. 

By voice vote, the Committee adopted en bloc seven amendments 

to the classified annex sponsored by: (1) Chairman Burr and Vice 

Chairman Feinstein; (2) Senator Rubio; (3) Senator Rubio and Senator Lankford; (4) Senator Warner; (5) Senator Warner and Senator Blunt; (6) Senator King, Senator Lankford, and Senator Rubio; 

and (7) Senator Cotton and Senator Rubio. 

By voice vote, the Committee adopted en bloc the following seven 

amendments to the bill: (1) an amendment by Chairman Burr and 

Vice Chairman Feinstein to enhance the Federal Bureau of Investigation’s workforce; (2) an amendment by Chairman Burr, Vice 

Chairman Feinstein, Senator Warner, and Senator Cotton that permits the Director of National Intelligence to support nonprofit organizations assisting Intelligence Community employees and their 

families; (3) an amendment by Vice Chairman Feinstein to require 

notifications of engagements of the Intelligence Community with 

the entertainment industry; (4) an amendment by Vice Chairman 

Feinstein and Senator Hirono to improve government classification 

and declassification; (5) an amendment by Senator Rubio to limit 

the transfers of detainees to certain countries; (6) an amendment 

by Senator Warner, Senator Mikulski, and Senator Hirono to require reporting on Intelligence Community academic programs; and 

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kulski, Senator Heinrich, Senator Hirono, Senator Risch, and Senator Warner to require Intelligence Community assistance for nationally significant critical infrastructure. 

By a vote of 3 ayes to 12 noes, the Committee rejected an amendment by Senator Wyden, Senator Heinrich, and Senator Hirono to 

strike Section 603 of the bill. The votes in person or by proxy were 

as follows: Chairman Burr—no; Senator Risch—no; Senator 

Coats—no; Senator Rubio—no; Senator Collins—no; Senator 

Blunt—no; Senator Lankford—no; Senator Cotton—no; Vice Chairman Feinstein—no; Senator Wyden—aye; Senator Mikulski—no; 

Senator Warner—no; Senator Heinrich—aye; Senator King—no; 

Senator Hirono—aye. 

By voice vote, the Committee adopted an amendment by Senator 

Rubio to the classified annex, as modified by a second degree 

amendment by Vice Chairman Feinstein. 

By a vote of 12 ayes to 3 noes, the Committee adopted an amendment by Senator Collins to provide the Inspector General of the 

Central Intelligence Agency with certain pay and retirement authorities. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Coats—aye; Senator 

Rubio—aye; Senator Collins—aye; Senator Blunt—aye; Senator 

Lankford—no; Senator Cotton—aye; Vice Chairman Feinstein— 

aye; Senator Wyden—aye; Senator Mikulski—aye; Senator Warner—aye; Senator Heinrich—aye; Senator King—aye; Senator 

Hirono—aye. 

By a vote of 12 ayes to 3 noes, the Committee adopted an amendment by Senator Cotton, as modified by a second degree amendment by Vice Chairman Feinstein, to clarify that the Government 

may obtain electronic communication transactional records from information service providers, as well as telecommunications providers. The votes in person or by proxy were as follows: Chairman 

Burr—aye; Senator Risch—aye; Senator Coats—aye; Senator 

Rubio—aye; Senator Collins—aye; Senator Blunt—aye; Senator 

Lankford—aye; Senator Cotton—aye; Vice Chairman Feinstein— 

aye; Senator Wyden—no; Senator Mikulski—aye; Senator Warner—aye; Senator Heinrich—no; Senator King—aye; Senator 

Hirono—no. 

By voice vote, the Committee adopted an amendment by Senator 

Cotton, as modified by three separate second degree amendments 

by Chairman Burr, Vice Chairman Feinstein, and Senator King, to 

require the Director of National Intelligence to lead a process for 

declassifying and making publicly available information on released Guantanamo detainees. 

Vote to report the committee bill 

The Committee voted to report the bill, as amended, by a vote 

of 14 ayes and 1 no. The votes in person or by proxy were as follows: Chairman Burr—aye; Senator Risch—aye; Senator Coats— 

aye; Senator Rubio—aye; Senator Collins—aye; Senator Blunt— 

aye; Senator Lankford—aye; Senator Cotton—aye; Vice Chairman 

Feinstein—aye; Senator Wyden—no; Senator Mikulski—aye; Senator Warner—aye; Senator Heinrich—aye; Senator King—aye; and 

Senator Hirono—aye. 


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By unanimous consent, the Committee authorized the staff to 

make technical and conforming changes in the bill, report, and 

classified annex, following the completion of the mark-up. 

COMPLIANCE WITH RULE XLIV 

Rule XLIV of the Standing Rules of the Senate requires publication of a list of any ‘‘congressionally directed spending item, limited 

tax benefit, and limited tariff benefit’’ that is included in the bill 

or the committee report accompanying the bill. Consistent with the 

determination of the Committee not to create any congressionally 

directed spending items or earmarks, none have been included in 

the bill, the report to accompany it, or the classified schedule of authorizations. The bill, report, and classified schedule also contain 

no limited tax benefits or limited tariff benefits. 

ESTIMATE OF COSTS

Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing 

Rules of the Senate, the Committee deems it impractical to include 

an estimate of the costs incurred in carrying out the provisions of 

this report due to the classified nature of the operations conducted 

pursuant to this legislation. On June 3, 2016, the Committee transmitted this bill to the Congressional Budget Office and requested 

an estimate of the costs incurred in carrying out the unclassified 

provisions. 

EVALUATION OF REGULATORY IMPACT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that no substantial regulatory impact will be incurred by implementing the provisions of 

this legislation. 


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ADDITIONAL VIEWS OF SENATOR WARNER 

I am happy that the range of amendments I offered this year 

have all been accepted into the bill, including a number of provisions relating to my priorities of modernizing how the nation undertakes its planning for, and acquisition of, overhead satellite systems, including better coordination and collaboration between the 

Intelligence Community (IC) and the Department of Defense. 

I commend the Committee for diligently listening to the calls 

that I and other Committee colleagues, including Senators King, 

Mikulski, Hirono, Rubio and others, have made to closely monitor 

this critical area of our national intelligence program. 

The bill directs the Director of National Intelligence, the Secretary of Defense and Chairman of the Joint Chiefs to update and 

deliver to the Committee the strategy we called for in last year’s 

bill for a comprehensive approach to the overhead satellite architecture that supports U.S. intelligence programs. 

Such a strategy must ensure that the nation’s satellite architecture meets the nation’s needs in peace- and war-time; responsibly 

stewards the taxpayers’ dollars; accurately takes into account costand performance tradeoffs of the architecture; meets realistic requirements; produces and fosters excellence, innovation and competition; produces innovative satellite systems in under five years 

that can leverage common, standardized design elements and commercially-available technologies; takes advantage of rapid advances 

in commercial technology, innovation and commercial-like acquisition practices; and fosters competition and a robust industrial base. 

My focus this year has also been to encourage the IC to take advantage of the large number of overhead commercial and emerging 

small satellite technologies that we expect to see launched as soon 

as this year. The Community needs to be prepared to take advantage of these resources and not to see them as competition. Consistent with the National Space Policy, the U.S. government should 

make maximum use of commercial space capabilities and acquisition practices for national security systems where the required performance can be met with commodity technology to reduce acquisition timelines and costs, promote competition, capitalize on the 

pace of commercial technology advances, and avoid unnecessary 

government-unique investments. 

I, along with my Committee colleagues, have commended the 

Community, and especially the National Geospatial-Intelligence 

Agency (NGA) for pursuing new methods of intelligence collection 

and analysis to inform, complement, and add to its support of 

warfighter requirements by looking to emerging commercial technology providers, including small satellite companies, which hold 

the promise of rapid technological innovation and potentially significant future cost savings to the U.S. taxpayer. 


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As the Director of NGA, Robert Cardillo, noted last year, ‘‘we are 

in the middle of an explosion of innovation across the geospatial 

community. . . . I call this explosion the ‘democratization’ of 

geospatial information. This ‘democratization’ makes geospatial intelligence increasingly transparent because of the huge number 

and diversity of commercial and open sources of information.’’ He 

went on to say, ‘‘the combined possibilities of an emergent commercial space market, the small satellite revolution, and a vibrant community of companies already mining the possibilities of geospatial 

data has inspired us to seek new opportunities.Let me reiterate— 

NGA wants to be the partner of choice for advancing our craft and 

enabling consequence by cooperating, not competing with, industry.’’ 

At the same time, my intent is not to undercut, or reduce current 

arrangements the Community has for acquiring commercial overhead imagery, which have worked exceptionally well—including 

through the ‘‘Enhanced View’’ arrangement. I would like to see the 

Community ‘‘expand the pie’’ of available commercial data, not to 

shrink what has been working well, as we prepare for new technologies to come on line. 

Elsewhere in the bill, I was happy to see the emphasis on the 

need to enhance the way the Community undertakes research and 

development (R&D). Building upon the work of the 2013 National 

Commission for the Review of the R&D Programs of the IC, provisions I offered require the DNI to develop a plan to implement an 

‘‘R&D Reserve Corps,’’ as recommended by the Commission, and to 

provide an updated assessment of the Community’s implementation of Commission’s recommendations. 

A provision I offered with Senator Mikulski calls on the IC to 

provide metrics of how well they are doing at hiring talented individuals who have gone through IC-supported academic programs 

such as the NSA and DHS National Centers of Academic Excellence in Information Assurance and Cyber Defense Education (such 

as those at Virginia academic institutions including at George 

Mason University, Hampton University, James Madison University, Lord Fairfax Community College, Marymount University, Norfolk State University, Northern Virginia Community College, 

Radford University, Tidewater Community College, and Virginia 

Tech). 

Another provision I offered with Senator Blunt authorizes funds 

to operate a Childcare Center at the National Geospatial-Intelligence Agency’s headquarters at Fort Belvoir, which is much needed by the intelligence professionals who work there to keep the nation safe, and where the childcare center building has not been 

operational since it was built two years ago. 

A provision I offered calls upon the IC, in partnership with the 

U.S. Air Force, to consider the role and contribution to our national 

security space launch capacity of spaceports or launch and range 

complexes that are state-owned and operated, and commercially licensed by the Federal Aviation Administration—such as Virginia’s 

Wallops Island. In supporting this provision the Committee cites 

the Chief of Staff of the U.S. Air Force, General Mark Welsh, who 

recently stated, ‘‘As we look at this space enterprise and how we 

do it differently in the future, as we look more at disaggregation, 


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microsats, cube sats, small sats, things that don’t have to go from 

a large launch complex all the time, I think proliferating launch 

complexes is probably going to be a natural outshoot of this. I think 

it’s commercially viable, it may be a way for companies to get into 

the launch business who could not afford to get into it or don’t see 

a future in it and for large national security space launches, but 

I think this has got to be part of the strategy that this whole national team puts together as we look to the future.’’ 

In closing, I wish to reiterate how proud I am to represent the 

thousands of current and former members of the intelligence agencies who live, work, or retire in Virginia. Because they are not able 

to discuss their very important work with friends and even family 

members, I will continue to be a strong advocate for them in Congress, and will continue to pursue efforts to recognize and honor 

their contributions to the nation. 

MARK R. WARNER


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ADDITIONAL VIEWS OF SENATOR COATS 

The Defense Intelligence Agency (DIA) is unique among its peer 

agencies in the Intelligence Community, as it’s charged with twin 

obligations that complement and at times conflict with one another. 

The DIA’s role as the premier combat support agency and a national intelligence organization demand steady leadership and an 

unshakable commitment to analytic objectivity in the face of departmental allegiance or a sense of owed deference to the military 

rank structure. In my view, the DIA’s continued stewardship by a 

uniformed military officer is irreconcilable with this aspiration. 

As overseer for the entirety of the Defense Intelligence Enterprise (DIE), the Director of the DIA is charged with responsibilities 

that extend far beyond the agency itself. The DIE is a community 

within a community, comprising the DIA, Service Intelligence Centers, and the respective intelligence centers of the various Combatant Commands. The tension underlying this arrangement is a function of protocol and military deference. While the DIA is a threestar command within the Department of Defense (DOD) construct, 

the intelligence operations in many of the DIE’s constituent entities function under the aegis of four-star commands—and specifically, the four-star general leading those commands. 

The sum of these underlying structural realities is that a threestar general is ostensibly responsible for the analytic quality and 

objectivity of DIA analysts who—as a function of proximity and organizational architecture—work under four-star generals. The 

problem with this construct should be self-evident. If not, a demonstrative example can be found in allegations that intelligence analysis was deliberately manipulated at U.S. Central Command’s 

Joint Intelligence Center (JICCENT) to favor desired policy outcomes. Notably absent from this episode is the DIA Director’s exercise of evocative supervisory responsibility over the JICCENT work 

product, which would be in fact anathema to the command and 

rank structure within which the DIA and U.S. Central Command 

exist in relation to one another. 

While my concerns are most acutely agitated by the referenced 

allegations, they do not end there. The DIA faces systemic issues, 

including incoherence of mission, resistance to change, and unwillingness to meaningfully define its customer base. The agency faces 

seemingly limitless intelligence requirements and unique structural 

challenges that hinder its ability to satisfy customers in the DOD, 

Military Departments, Unified Combatant Commands, and the 

broader Intelligence Community (IC). The present approach appears instead to be a mechanical assumption of responsibility for 

any conceivable intelligence requirement that a boundless population of customers might level on the DIA. Surely, this is inconsistent with the cultivation of deep-seated professional expertise, 


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proficiency, and organizational identity. At a minimum, it is inefficient and unsustainable. 

In the course of our Committee debate on the Intelligence Authorization Act for Fiscal Year 2017, I introduced an amendment 

that would mandate a transition to civilian leadership at the DIA. 

I do not take lightly the intent, and I am sensitive to the deviation 

from historical precedent. I am nonetheless compelled to advocate 

for this change in the DIA’s leadership construct. It is a necessary 

step toward addressing an agency beset by the challenges I have 

outlined, although I recognize it will not on its own resolve all of 

them. Civilian leadership of the DIA would in my view change the 

obstructive dynamic that presently defines the agency’s relationship with important DIE constituents, not the least of which are 

the Combatant Commands—and especially U.S. Central Command. 

With operational responsibility for wars in Syria, Iraq, and Afghanistan, the intelligence produced under U.S. Central Command auspices must be incorruptible in practice and perception. Present circumstances, however, invite the opposite judgment. 

While the ultimate version of the bill that was reported to the 

full Senate did not include my proposed amendment, I am hopeful 

this discussion will continue within the Committee, between the 

Armed Services and Intelligence Committees, and with the IC and 

DOD. The intelligence needs of the U.S. warfighter, and the broader national security ecosystem, demand that we cooperatively address this issue. 

DAN COATS. 


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ADDITIONAL VIEWS OF SENATORS HEINRICH AND HIRONO 

This important bill authorizes funding for key intelligence priorities, including programs to address the threat of terrorism. We 

supported the bill during Committee consideration, and look forward to further discussion as the bill moves forward, especially on 

those provisions that have not yet been subject to public debate. 

We are particularly concerned about two provisions in the bill. 

The first is a provision added to the bill by amendment. This 

amendment would grant new authority to the FBI to obtain electronic communication transactional records (ECTRs) using National Security Letters (NSLs), which compel recipients to allow 

government access to records without a court order. 

The FBI has compared expanding these authorities to fixing a 

‘‘typo’’ in the Electronic Communications Privacy Act (ECPA). However, during consideration of ECPA reform legislation in 1993, the 

House Judiciary Committee said in its committee report that ‘‘Exempt from the judicial scrutiny normally required for compulsory 

process, the national security letter is an extraordinary device. 

New applications are disfavored.’’ 

The House Judiciary Committee report also makes clear that the 

bill’s changes to Section 2709(b) of ECPA were a ‘‘modification of 

the language originally proposed by the FBI.’’ 

This does not support claims that the removal of the ECTR language was a ‘‘typo.’’ 

Instead, the ECTR amendment to this bill represents a vast expansion of FBI authorities. Currently, the FBI is permitted to use 

NSLs only to obtain basic subscriber information about telecommunications—name, address, length of service, and local and 

long distance toll billing records. However, this amendment would 

broaden that list to include electronic communication transactional 

records, which the FBI could then obtain from service providers by 

merely certifying relevance to an investigation with no court order 

required. 

The FBI can already obtain ECTRs with a court order using 

other authorities, but this broad new authority would allow the 

FBI to obtain internet transactional information that is far more 

revealing than phone records, to include records of emails sent and 

received, cell site location data, and a person’s website browsing 

history—all without any court approval or independent oversight. 

In addition, this bill report asserts that ‘‘certain providers’’ noncompliance is substantially impairing the FBI’s ability to conduct 

national security investigations.’’ Leaving aside the question of 

whether adherence to the law equates to ‘noncompliance,’ the FBI 

has merely stated, but not yet made a convincing case, that its conduct of national security investigations has been harmed by its inability to access ECTRs via National Security Letters. 


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Even as other committees in the Senate are working on ECPA 

reform legislation in open hearings, we should not be marking up 

a bill behind closed doors that makes a major change to existing 

statute without public discussion and debate. 

We are also concerned about Section 603, which would narrow 

the oversight responsibilities of the Privacy and Civil Liberties 

Oversight Board (PCLOB). In additional views we submitted to the 

FY 2016 Intelligence Authorization Act report, we noted that we 

did not look favorably on a provision in the House-passed FY 2016 

bill that would restrict PCLOB’s mandate. Unfortunately, that provision became law. This year, it is the Senate bill that seeks to further constrain this small but important organization. 

The PCLOB is the only independent, cross-government agency 

charged specifically with ensuring that the government’s efforts to 

prevent terrorism are balanced with the need to protect privacy 

and civil liberties. Section 603 of the Intelligence Authorization Act 

would limit the authority of the PCLOB by narrowing its authority 

to review government programs to only those that impact the privacy and civil liberties of U.S. persons. 

While the PCLOB already focuses primarily on U.S. persons, it 

is not mandated to do so exclusively. Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope 

of the PCLOB’s mandate, raising questions in particular about how 

the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not 

have reviewed the NSA’s Section 702 surveillance program, which 

focuses on the communications of foreigners located outside of the 

United States, but which is also acknowledged to be incidentally 

collecting Americans’ communications in the process. 

The PCLOB is a small body, created as part of the Implementing 

Regulations of the 9/11 Commission Act of 2007 without any authority to implement its recommendations. However small, the 

PCLOB’s creation recognized that the challenges of balancing privacy and civil liberties with our national security would only increase as our world becomes smaller due to the proliferation of new 

types of communication and other global interconnections. 

The PCLOB has two fundamental responsibilities. First, it is 

charged with reviewing and analyzing executive branch counterterrorism actions to ensure that the actions our government take 

appropriately protect privacy and civil liberties. Second, it is 

charged with making sure that privacy and civil liberty protections 

are considered in the development of our counter-terrorism policies. 

In the post-9/11 world we live in, the PCLOB provides a critical 

voice within the executive branch that helps shape how our nation 

conducts itself as we contend with global terrorism and other challenges. Yet for the second year in a row, Congress would be narrowing PCLOB’s jurisdiction. We believe this is not the right message to send. 

MARTIN HEINRICH. 

MAZIE K. HIRONO. 


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MINORITY VIEWS OF SENATOR WYDEN 

While I respect the effort that my colleagues have put into drafting this year’s Intelligence Authorization Act, I opposed this bill because it would dramatically and unnecessarily expand government 

surveillance authorities, and would undermine independent oversight of America’s intelligence agencies. 

National Security Letters 

Specifically, this bill contains language—section 803—that would 

authorize individual Federal Bureau of Investigation (FBI) field offices to demand Americans’ email and Internet records simply by 

issuing a National Security Letter, with no court oversight whatsoever. 

This authority currently exists for phone records, and FBI officials have repeatedly suggested that it would be convenient if ‘electronic communication transaction records,’ such as email and Internet records, could be collected in the same way. But convenience 

alone does not justify such a dramatic erosion of Americans’ constitutional rights. 

If FBI officials have reason to suspect that an individual is connected to terrorism or espionage, they can already access that person’s email and Internet records by simply obtaining an order from 

the Foreign Intelligence Surveillance Court. These orders can be 

issued in secret, and require relatively little evidence—the FBI 

simply needs to assert that the records are ‘‘relevant to an investigation.’’ But requiring the approval of an independent judge provides an important check against the abuse or misuse of this authority by the FBI. By contrast, National Security Letters are not 

reviewed by a judge unless a company that receives one attempts 

to challenge it. 

I certainly appreciate the FBI’s interest in obtaining records 

about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the 

recently-passed USA FREEDOM Act gives the FBI new authority 

to obtain records immediately in emergency situations, and then 

seek court review after the fact. I strongly supported the passage 

of that provision, which I first proposed in 2013. By contrast, I do 

not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too 

slow, then the appropriate solution is bureaucratic reforms, not a 

major expansion of government surveillance authorities. 

While this bill does not clearly define ‘electronic communication 

transaction records,’ this term could easily be read to encompass 

records of whom individuals exchange emails with and when, as 

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net browsing history. This sort of surveillance can clearly reveal a 

great deal of personal information about individual Americans. Our 

Founding Fathers rightly argued that such intrusive searches 

should be approved by independent judges. 

It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice 

Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types 

of records, and this list did not include electronic communication 

transaction records. The FBI has unfortunately not adhered to this 

guidance, and has at times continued to issue National Security 

Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication 

transaction records would be a significant expansion of the FBI’s 

statutory authority. 

And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of 

abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General 

from 2007, 2008, 2010 and 2014, so I will not repeat the details of 

these reports here. In my judgment, it would be reckless to expand 

this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly. 

Privacy and Civil Liberties Oversight Board 

Separately, I am troubled that this bill would erode the jurisdiction of the independent Privacy and Civil Liberties Oversight 

Board, for the second year in a row. 

Specifically, the bill would narrow the Board’s statutory jurisdiction to cover only programs that impact the privacy and civil liberties of U.S. persons. To date, the Board’s oversight has focused 

very much on U.S. persons, and in my judgment this is entirely appropriate. But if the Intelligence Committee simply wanted to encourage the Board to maintain this focus, that could be accomplished with non-binding report language. Instead, this provision 

amends the law to limit the Board’s official purview. 

This is concerning because in the digital domain, individuals’ 

U.S. or non-U.S. status is not always readily apparent, and restricting the Board in this way could discourage or even prevent 

the Board from examining programs whose impact on U.S. persons 

is not clear at first glance. 

Additionally, while I support the Board’s current focus on U.S. 

persons, it is easy to envision situations in which tasking the Board 

to produce a one-time report that also looked at non-U.S. persons 

might be appropriate. This provision would arguably prohibit the 

Board from taking on such projects. 

Furthermore, I would note that over the past few years the Executive Branch has made real efforts to mitigate the diplomatic and 

economic damage that overly broad surveillance activities have 

caused. These efforts continue to be a work in progress, and foreign 

regulators continue to raise concerns about U.S. surveillance as 

justification for opposing agreements that would benefit American 


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consumers and the U.S. tech industry. I am therefore concerned 

that narrowing the Board’s jurisdiction and signaling that the U.S. 

has no regard for the privacy of other countries’ citizens would play 

into the hands of foreign protectionists. 

Finally, I am troubled by the message that the Intelligence Committee is sending by supporting this provision. Over the past three 

years, the Privacy and Civil Liberties Oversight Board has done 

outstanding and highly professional work. It has examined large, 

complex surveillance programs and evaluated them in detail, and 

it has produced public reports and recommendations that are quite 

comprehensive and useful. Indeed, the Board’s reports on major 

surveillance programs are the most thorough publicly available 

documents on this topic. My concern is that by acting to restrict 

the Board’s purview for the second year in a row, and by making 

unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should 

not do its job too well. 

Unfortunately, while I appreciate that this bill includes a proposal that I and a bipartisan, bicameral group of colleagues have 

put forward to allow the Board to hire staff even when the Board’s 

chair position is vacant, the inclusion of this provision does not outweigh my substantial concerns with this bill. 

I will continue to oppose this bill as long as the objectionable provisions noted above are included. I hope to be able to work with 

colleagues to remove these provisions prior to consideration of the 

bill by the full Senate. My further additional views on provisions 

contained in the classified annex to this bill can be found in the 

annex itself. 

RON WYDEN. 

Æ 


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