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[Senate Report 113-119]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 235
113th Congress                                                   Report
                                 SENATE
 1st Session                                                    113-119

======================================================================

 
                     FISA IMPROVEMENTS ACT OF 2013

                                _______
                                

               November 12, 2013.--Ordered to be printed

                                _______
                                

      Mrs. Feinstein, from the Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1631]

    The Select Committee on Intelligence, having considered an 
original bill (S. 1631) to consolidate the congressional 
oversight provisions of the Foreign Intelligence Surveillance 
Act of 1978 and for other purposes, reports favorably thereon 
and recommends that the bill do pass.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Committee, since its inception in 1976, has considered 
oversight of the Executive branch's use of electronic 
surveillance for foreign intelligence purposes to be one of its 
most important responsibilities. Since 2006, a central focus of 
that oversight has included the Executive branch's use of 
Section 215 of the USA PATRIOT Act (Section 501 of FISA) to 
conduct bulk collection of ``call data records'' that contain 
metadata concerning domestic and international telephone calls, 
including the numbers dialed, as well as the time, date, and 
duration of the calls, but not the content of the calls.
    The Committee has not been alone in its oversight of this 
telephone metadata program. The Senate Judiciary Committee, as 
well as the Committee on the Judiciary and the Permanent Select 
Committee on Intelligence of the House of Representatives, also 
has received regular reports and briefings on the program. In 
addition, information concerning the bulk telephone metadata 
program has been made available to every member of the Senate 
prior to the reauthorization of Section 215, most recently in 
2011.
    As the Committee has reauthorized the business records 
provision in the past, it has found the program to be an 
effective counterterrorism tool and one that was determined by 
the Department of Justice in two Administrations and by at 
least fifteen different judges serving on the Foreign 
Intelligence Surveillance Court (FISC) to be lawful. In 
hearings and in mark-ups, the Committee has discussed the 
program and determined on a strong bipartisan basis that the 
legal authorities supporting the program should be 
reauthorized.
    Through the Committee's oversight of the program, the 
Committee has been made aware of instances of inadvertent non-
compliance with the law or other policies and procedures 
governing the telephone metadata program. Where such incidents 
have arisen, they have been the result of human error or 
technical defect--not intentional abuse--and have been promptly 
reported and remedied. Further, the Committee has performed 
extensive oversight of such incidents to help ensure necessary 
measures were taken to correct the deficiencies that gave rise 
to the compliance incidents. It remains the case that, through 
seven years of oversight of this metadata program under Section 
215, the Committee has not identified a single case in which a 
government official engaged in a willful effort to circumvent 
or violate Section 215 in the conduct of the bulk telephone 
metadata program.
    Similarly, the Committee has conducted oversight of the 
implementation of Section 702 of FISA as established in 2008 by 
the FISA Amendments Act. The Committee has found that 
authority, which allows for the collection of the electronic 
communications of non-U.S. Persons outside the United States 
under procedures approved annually by the FISC, to be extremely 
effective in producing foreign intelligence concerning 
terrorists, weapons proliferators, and other adversaries. This 
provision has been the subject of significant noncompliance 
issues in the past, but as with the business records metadata 
program, those issues have been uniformly unintentional, self-
identified, and reported to the Court and to Congress.
    Until earlier this year, key aspects of both the business 
records program and the Section 702 collection were highly 
classified. Following the unprecedented leaks of classified 
information, primarily of information relating to the National 
Security Agency (NSA), by former NSA contractor Edward Snowden, 
most of both programs' secrets have been declassified by the 
Director of National Intelligence (DNI). The nature of the 
leaks has caused public concern over the use of these 
authorities, notwithstanding the care demonstrated by the NSA 
to abide by the law and to protect U.S. Persons' private 
information. This has led to a series of Committee hearings and 
discussions over ways to add additional privacy protections and 
transparency measures to FISA operations, while preserving the 
operational effectiveness and flexibility of the programs, 
resulting in this legislation. The Committee remains of the 
view that these programs are effective, lawful, and subject to 
significant oversight and review within the Intelligence 
Community and by the Department of Justice, the FISC, and the 
Congress.
    This legislation includes a series of measures that make 
improvements to FISA as well as other laws relating to 
intelligence activities carried out by the Executive branch. 
Specifically, these measures are intended to codify existing 
privacy protections for the bulk telephone metadata program 
that are currently established through Court-approved 
minimization procedures or Executive branch policy. The 
measures in this bill also seek to enhance those privacy 
protections, where appropriate, by placing additional limits on 
the telephone metadata program that do not reduce its 
operational effectiveness. This legislation increases 
transparency--to the public and to the Congress--concerning the 
bulk telephone metadata program, as well as other aspects of 
FISA, where it is possible to do so without compromising the 
efficacy of intelligence activities undertaken pursuant to 
FISA. Finally, the legislation also includes a series of 
measures--to include making the appointment of the Director of 
the NSA and the NSA Inspector General subject to Senate 
confirmation and requiring periodic review of Attorney General-
approved procedures for intelligence collection under Executive 
order 12333--that do not specifically concern FISA or the bulk 
telephone metadata program, but which the Committee judges to 
be appropriate measures for improving both the implementation 
and oversight of intelligence activities.
    Many of the measures contained in this legislation could 
not have been enacted absent the declassification of lawful 
intelligence activities that were, until recently, properly 
classified, as to do so would have revealed the programs to our 
adversaries and thereby compromised their effectiveness. These 
measures are possible now only because the impacted 
intelligence programs were publicly acknowledged following a 
series of unauthorized disclosures; however, this bill should 
not be construed as an endorsement of these unauthorized 
disclosures. The Committee is dismayed by leaks that have 
appeared in the media over the past several months concerning 
the bulk telephone metadata program, as well as other 
classified intelligence activities. The public disclosure of 
these programs is not a principled act of civil disobedience 
and has done grievous harm to the effectiveness of the programs 
involved and, hence, the nation's security.
    All intelligence professionals take an oath to protect this 
country and sign non-disclosure agreements, which demand, at 
times, that those trusted with classified information keep it 
secret because to reveal it, whatever the motivation, is to 
provide details of classified intelligence sources and methods 
to our nation's enemies. This is true even when one disagrees 
with the sources and methods involved or the appropriateness of 
their classification. In fact, lawful means exist for true 
government ``whistleblowers'' to bring information regarding 
violations of law, or other concerns, to one of several 
Inspectors General throughout the government, or to Congress. 
These channels exist because, in a representative democracy, it 
is not for any one person to decide on his own which 
intelligence methods are wise or effective.
    Recent media leaks concerning activities of the NSA have 
not exposed government wrongdoing. Rather, they have revealed 
to our adversaries lawful intelligence collection programs 
directed against valid foreign intelligence targets. Up until 
these programs were leaked, their implementation by NSA was an 
example of how our democratic system of checks and balances is 
intended to, and does, work. For example, the NSA telephone 
metadata program was approved by federal judges and overseen by 
Congress, where every member of the Senate had access to 
information concerning how the programs were conducted and an 
opportunity to voice objections and debate their efficacy. Some 
members did voice objections, but a substantially greater 
number weighed the relative privacy and security interests and 
chose to support these programs.
    The unauthorized disclosures concerning these lawful 
programs have provided al-Qa'ida and others with a roadmap of 
how to better evade U.S. intelligence collection. Some would 
like to believe these disclosures have started a debate about 
the propriety and efficacy of NSA surveillance programs but, in 
fact, to a substantial degree, recent unauthorized disclosures 
have ended the debate because, once disclosed, the programs at 
issue become substantially less effective. The nation will 
suffer as a result.

              SECTION-BY-SECTION ANALYSIS AND EXPLANATION

    The following is a section-by-section analysis and 
explanation of the FISA Improvements Act of 2013 that is being 
reported by the Committee.

Section 1. Short title

    Section 1 states that the Act may be cited as the ``FISA 
Improvements Act of 2013.''

Section 2. Supplemental procedures for acquisition of certain business 
        records for counterterrorism purposes

    Section 2 clarifies the authority for bulk collection of 
records containing non-content metadata concerning the wire or 
electronic communications of United States persons. Section 2 
adds two new provisions to Section 215 of the USA PATRIOT Act 
(Section 501 of FISA). The first provision (Section 501(i) of 
FISA) establishes a general prohibition on the use of Section 
501 to acquire bulk wire or electronic communications records 
that concern the communications of U.S. persons if the order 
authorizing such collection does not name or otherwise identify 
individuals or facilities.
    The second provision (Section 501(j) of FISA) provides 
authority for bulk collection otherwise prohibited by Section 
501(i), provided the applicable Court order imposes certain 
supplemental procedures. Under this section, the acquisition of 
such records in bulk remains authorized under Section 215 of 
the USA PATRIOT Act but is subject to supplemental procedures 
that codify existing privacy protections for U.S. persons and 
adds new protections. Specifically, an order directed to the 
government authorizing the acquisition in bulk of wire or 
electronic communication records concerning the communications 
of United States persons from electronic communications service 
providers: (1) shall not authorize the acquisition of the 
content of any communication; (2) shall be effective for a 
period not to exceed 90 days; (3) shall mandate government 
retention of such records in accordance with Court-approved 
security procedures; (4) shall restrict analysts from accessing 
the data except to perform a query using a selector for which a 
recorded determination has been made that there is a reasonable 
articulable suspicion that the selector is associated with 
international terrorism or activities in preparation therefor; 
(5) shall require a record of each such determination and 
query; (6) shall limit the number of government personnel who 
can make such a determination or perform such a query; (7) 
shall record automatically, and subsequently report, the number 
of queries to Congress; (8) shall require the FISC to limit the 
number of tiers of contacts (i.e., ``hops'') that an analyst 
can receive in response to a query; (9) shall require that the 
FISC receives a written record of each determination, and allow 
for the Court to disapprove the determination, in which case 
the Court may order remedial action; and (10) shall limit 
retention of bulk metadata to five years, with a further 
requirement of Attorney General-approval for queries of data 
that is more than three years old.
    The Committee believes that, to the greatest extent 
practicable, all queries conducted pursuant to the authorities 
established under this section should be performed by Federal 
employees. Nonetheless, the Committee acknowledges that it may 
be necessary in some cases to use contractors to perform such 
queries. By using the term ``government personnel'' the 
Committee does not intend to prohibit such contractor use.
    Section 2 also requires additional reporting to both 
Congress and the public concerning the Executive branch's use 
of Section 215, to include reporting concerning the number of 
targets and queries, as well as the number of investigative 
leads and probable cause orders initiated as a result of the 
telephone metadata program.

Section 3. Enhanced criminal penalties for unauthorized access to 
        collected data

    Section 3 establishes criminal penalties in Title 18 of the 
U.S. Code for unauthorized access to data repositories 
containing information acquired by the United States pursuant 
to an order of the FISC.

Section 4. Appointment of amicus curiae

    Section 4 authorizes the FISC and the Foreign Intelligence 
Surveillance Court of Review (FISCR) to appoint amicus curiae 
to assist the Court in the consideration of applications that, 
in the opinion of the Court, present a novel or significant 
interpretation of the law.
    Section 4 also requires the FISC and FISCR to designate one 
or more individuals, possessing the necessary clearances, who 
may be appointed to serve as amicus curiae.
    Senators King, Collins, Warner, and Mikulski prepared this 
provision as an amendment and it was incorporated into the bill 
prior to markup.

Section 5. Consolidation of congressional oversight provisions under 
        the Foreign Intelligence Surveillance Act of 1978

    Section 5 consolidates five existing reporting requirements 
on FISA activities into a single semi-annual reporting 
requirement. In addition, this section adds measures intended 
to enhance overall transparency, to include measures intended 
to increase the availability of reports on FISA that are 
generated by the Executive branch to members of Congress not 
serving on the intelligence or judiciary committees, as well as 
measures intended to increase the availability of unclassified 
information contained in those reports to the public. Under 
this section, information previously required to be made public 
will continue to be made public.

Section 6. Restrictions on querying the contents of certain 
        communications

    Section 6 requires that the government document all queries 
of data acquired pursuant to Section 702 of FISA that use a 
U.S. Person's selector and provides that those queries may be 
conducted only if the purpose of the query is to obtain foreign 
intelligence information or information necessary to understand 
foreign intelligence information or to assess its importance. 
The section further requires that documentation of such queries 
will be available for review by the Department of Justice, 
appropriate Inspectors General, the FISC, and the Congress.
    Section 6 does not limit the authority of law enforcement 
agencies to conduct queries of data acquired pursuant to 
Section 702 of FISA for law enforcement purposes.
    This section recognizes the valid foreign intelligence need 
to conduct queries that use a U.S. Person selector, but seeks 
to ensure that appropriate limitations and oversight procedures 
are in place.
    The Committee believes that, to the greatest extent 
practicable, all queries conducted pursuant to the authorities 
established under this section should be performed by Federal 
employees. Nonetheless, the Committee acknowledges that it may 
be necessary in some cases to use contractors to perform such 
queries. By using the term ``government personnel'' the 
Committee does not intend to prohibit such contractor use.

Section 7. Temporary targeting of persons other than United States 
        persons traveling into the United States

    Section 7 authorizes the government to continue collection 
for a 72-hour transitional period, where the collection is 
directed against a non-U.S. person target who travels into the 
United States while the target is the subject of collection 
that was lawfully initiated while the target was abroad. This 
provision is intended to provide the government with a grace 
period, to be used solely in exigent circumstances consistent 
with the reasonableness requirement of the Fourth Amendment, to 
enable the government to seek emergency authorization to 
maintain, rather than terminate, coverage of the target while 
such emergency authorization is sought. If a Court order is not 
issued, all collection after the time the target is known to 
have entered the U.S. must be deleted, unless the Attorney 
General determines that the information indicates a threat of 
death or serious bodily harm.
    This provision responds to a gap in national security 
authorities. Under current law, collection directed against a 
lawful non-U.S. person target must terminate if that target is 
determined to have entered the United States, even if that 
target's presence in the country raises additional concerns. 
This mandatory cessation of surveillance exists whether 
coverage of the individual was authorized under Section 702 of 
FISA or under Executive order 12333, and creates a gap in 
coverage even where the government works expeditiously to 
develop the probable cause need to invoke the emergency 
procedures in FISA. Under this provision, collection directed 
against a non-U.S. person target may continue for a 72-hour 
period while the Executive branch seeks other surveillance 
authorities--to include emergency employment of electronic 
surveillance under Section 105(e) of FISA. The Committee 
believes this situation is roughly analogous to the long-
standing emergency procedures in FISA, through which the 
government, based on a finding of probable cause, can conduct 
electronic surveillance on an individual while it seeks Court 
approval.

Section 8. Confirmation of appointment of the Director of the National 
        Security Agency

    Section 8 amends the National Security Agency Act of 1959 
to provide that the Director of the NSA shall be appointed by 
the President by and with the advice and consent of the Senate. 
Under present law and practice, the President appoints the 
Director of the NSA. The appointment has been indirectly 
subject to confirmation through Senate confirmation of the 
military officers who have been promoted into the position. 
Section 8 will make explicit that the filling of this key 
position in the Intelligence Community should be subject to 
Senate confirmation.
    The Committee has had a long-standing interest in ensuring 
Senate confirmation of the Director of the NSA, and this 
requirement has previously been supported by the Senate. The 
Committee renews the requirement for Senate confirmation of the 
Director of the NSA in this Act in light of NSA's critical role 
in the national intelligence mission, particularly with respect 
to activities that may raise privacy concerns.
    Through advice and consent, the Senate can enable the 
Congress to fulfill more completely its responsibility for 
providing oversight of the intelligence activities of the 
United States government and ensure that the NSA's 
responsibilities and foreign intelligence activities receive 
appropriate attention.
    Section 8 does not alter the role of the Committee on Armed 
Services of the Senate in reviewing and approving the promotion 
or assignment of military officers. The Committee intends to 
approve a separate Senate Resolution that would dictate the 
roles of the Committee and the Armed Services Committee in 
considering the nomination of a new Director of the NSA, with 
the order of the committees' actions to be determined by 
whether the nominee is a military officer.
    Finally, the section makes clear that the requirement for 
Senate confirmation applies prospectively. Therefore, the 
Director of the NSA on the date of enactment will not be 
affected by this section, which will apply initially to the 
appointment and confirmation of his successor.

Section 9. Presidential appointment and Senate confirmation of the 
        Inspector General of the National Security Agency

    Section 9 amends the Inspector General Act of 1978 (5 
U.S.C. App.) to provide that the Inspector General of the NSA 
shall be appointed by the President by and with the advice and 
consent of the Senate. Under present law and practice, the 
Director of the NSA appoints the NSA Inspector General.
    The Inspector General of the NSA performs a critical role 
in ensuring that the NSA carries out its national intelligence 
mission in full compliance with the law and applicable policies 
and regulations. By requiring Presidential appointment and 
Senate confirmation of the NSA Inspector General, this 
provision will ensure the NSA Inspector General operates 
independently of the Director of the Agency in overseeing the 
activities of the NSA, particularly with respect to activities 
that may raise privacy concerns.
    Senators Coats, Udall, Collins, Coburn, and Mikulski 
prepared this provision as an amendment, and it was 
incorporated into the bill prior to markup.

Section 10. Annual reports on violations of law or Executive order

    Section 10 requires the DNI to report annually to the 
congressional intelligence committees on violations of law or 
Executive order by personnel of an element of the Intelligence 
Community that were identified during the previous calendar 
year. Under the National Security Act, the President is 
required to keep the congressional intelligence committees 
fully and currently informed of the intelligence activities of 
the United States government. Nonetheless, the Committee has 
determined that this annual reporting requirement is necessary 
to better ensure that the intelligence oversight committees of 
the House and Senate are made aware of violations of law or 
Executive order, including, in particular, violations of 
Executive order 12333 for activities not otherwise subject to 
FISA.

Section 11. Periodic review of Intelligence Community procedures for 
        the acquisition, retention, and dissemination of intelligence

    Section 11 mandates that the head of each element of the 
Intelligence Community conduct a review at least every five 
years of the Attorney General-approved procedures for 
intelligence collection that each Intelligence Community 
element is required to adopt pursuant to Section 2.3 of 
Executive order 12333. The procedures required by Executive 
order 12333 govern the handling of information concerning U.S. 
persons in all intelligence activities, including those also 
governed by FISA. It has come to the Committee's attention that 
some intelligence agencies have not substantively modified or 
updated their Attorney General-approved procedures in several 
decades. As a result, the procedures in place today pre-date 
advances in technology that have had a significant effect on 
the conduct of intelligence activities and on the privacy and 
civil liberties of U.S. persons. Further, it has come to the 
attention of the Committee that at least one Intelligence 
Community element does not have procedures in place. Section 11 
reflects this Committee's belief that the adoption and periodic 
review of Attorney General-approved procedures for intelligence 
collection, which are required by Section 2.3 of Executive 
order 12333, is a priority that the Intelligence Community 
should work expeditiously to undertake.

Section 12. Privacy and Civil Liberties Oversight Board enhancements 
        relating to the Foreign Intelligence Surveillance Act

    Section 12 requires notification to the Privacy and Civil 
Liberties Oversight Board (PCLOB) of applications to the FISC 
that contain a new or significant interpretation of law and 
relate to efforts to protect the United States from terrorism. 
It also permits the PCLOB to perform an assessment of those 
applications. In addition, Section 12 directs the PCLOB to 
conduct an annual review of the activities of the NSA related 
to information collection under FISA. Finally, Section 12 
provides for communications services and office space to 
certain members of the PCLOB.

                            COMMITTEE ACTION

Votes on amendments to committee bill and this report

    On October 29, 2013, a quorum being present, the Committee 
met to consider the bill and amendments. The Committee took the 
following actions:
    By unanimous consent, the Committee made the Chairman and 
Vice Chairman's bill the base text for purposes of amendment. 
The Committee also authorized the staff to make technical and 
conforming changes in the bill and report following the 
completion of the mark-up.
    By unanimous consent, the Committee agreed to amend the 
title of Section 3 of the bill to clarify more specifically 
what activity it will criminalize.
    By a vote of 7 ayes to 8 noes the Committee rejected an 
amendment by Senator Rockefeller to establish a 3-year limit on 
the retention of bulk metadata. The votes on the amendment in 
person or by proxy were as follows: Chairman Feinstein--aye; 
Senator Rockefeller--aye; Senator Wyden--aye; Senator 
Mikulski--aye; Senator Udall--aye; Senator Warner--aye; Senator 
Heinrich--aye; Senator King--no; Vice Chairman Chambliss--no; 
Senator Burr--no; Senator Risch--no; Senator Coats--no; Senator 
Rubio--no; Senator Collins--no; Senator Coburn--no.
    By a vote of 10 ayes to 5 noes the Committee agreed to an 
amendment by Senator Collins to enhance the role of the Privacy 
and Civil Liberties Oversight Board in overseeing certain 
intelligence activities authorized under FISA. The votes on the 
amendment in person or by proxy were as follows: Chairman 
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye; 
Senator Mikulski--aye; Senator Udall--aye; Senator Warner--aye; 
Senator Heinrich--aye; Senator King--aye; Vice Chairman 
Chambliss--no; Senator Burr--no; Senator Risch--no; Senator 
Coats--no; Senator Rubio--no; Senator Collins--aye; Senator 
Coburn--aye.
    By a vote of 4 ayes to 11 noes the Committee rejected an 
amendment by Senator Wyden to express the intent of the 
Committee to hold additional open hearings on FISA during the 
2013 calendar year. The votes on the amendment in person or by 
proxy were as follows: Chairman Feinstein--no; Senator 
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--aye; 
Senator Udall--aye; Senator Warner--no; Senator Heinrich--aye; 
Senator King--no; Vice Chairman Chambliss--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Rubio--no; 
Senator Collins--no; Senator Coburn--no.
    By a vote of 6 ayes to 9 noes the Committee rejected an 
amendment by Senator Coburn to eliminate restrictions on the 
retention of bulk metadata. The votes on the amendment in 
person or by proxy were as follows: Chairman Feinstein--no; 
Senator Rockefeller--no; Senator Wyden--no; Senator Mikulski--
no; Senator Udall--no; Senator Warner--no; Senator Heinrich--
no; Senator King--no; Vice Chairman Chambliss--no; Senator 
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator 
Rubio--aye; Senator Collins--aye; Senator Coburn--aye.
    By a vote of 3 ayes to 12 noes the Committee rejected an 
amendment by Senator Udall to prohibit bulk collection of 
business records under Section 215 of the USA PATRIOT Act. The 
votes on the amendment in person or by proxy were as follows: 
Chairman Feinstein--no; Senator Rockefeller--no; Senator 
Wyden--aye; Senator Mikulski--no; Senator Udall--aye; Senator 
Warner--no; Senator Heinrich--aye; Senator King--no; Vice 
Chairman Chambliss--no; Senator Burr--no; Senator Risch--no; 
Senator Coats--no; Senator Rubio--no; Senator Collins--no; 
Senator Coburn--no.
    By a vote of 15 ayes to 0 noes the Committee agreed to an 
amendment by Senator King to require the Director of National 
Intelligence to establish a technical procedure to record 
automatically the aggregate number of queries of bulk metadata 
and report that automatic recording to Congress on a quarterly 
basis. The votes on the amendment in person or by proxy were as 
follows: Chairman Feinstein--aye; Senator Rockefeller--aye; 
Senator Wyden--aye; Senator Mikulski--aye; Senator Udall--aye; 
Senator Warner--aye; Senator Heinrich--aye; Senator King--aye; 
Vice Chairman Chambliss--aye; Senator Burr--aye; Senator 
Risch--aye; Senator Coats--aye; Senator Rubio--aye; Senator 
Collins--aye; Senator Coburn--aye.
    By a vote of 7 ayes to 8 noes the Committee rejected an 
amendment by Senator Wyden to require the public disclosure of 
any decision of the FISC that concerns a violation of the 
Constitution. The votes on the amendment in person or by proxy 
were as follows: Chairman Feinstein--no; Senator Rockefeller--
no; Senator Wyden--aye; Senator Mikulski--aye; Senator Udall--
aye; Senator Warner--aye; Senator Heinrich--aye; Senator King--
aye; Vice Chairman Chambliss--no; Senator Burr--no; Senator 
Risch--no; Senator Coats--no; Senator Rubio--no; Senator 
Collins--aye; Senator Coburn--no.
    By a vote of 3 ayes to 12 noes the Committee rejected an 
amendment by Senator Wyden to substitute the text of the bill 
with the text of S. 1551, the ``Intelligence Oversight and 
Surveillance Reform Act.'' The votes on the amendment in person 
or by proxy were as follows: Chairman Feinstein--no; Senator 
Rockefeller--no; Senator Wyden--aye; Senator Mikulski--no; 
Senator Udall--aye; Senator Warner--no; Senator Heinrich--aye; 
Senator King--no; Vice Chairman Chambliss--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Rubio--no; 
Senator Collins--no; Senator Coburn--no.
    By a vote of 7 ayes to 8 noes the Committee rejected an 
amendment by Senator Heinrich to prohibit the collection of 
bulk cell site location information. The votes on the amendment 
in person or by proxy were as follows: Chairman Feinstein--no; 
Senator Rockefeller--aye; Senator Wyden--aye; Senator 
Mikulski--no; Senator Udall--aye; Senator Warner--aye; Senator 
Heinrich--aye; Senator King--aye; Vice Chairman Chambliss--no; 
Senator Burr--no; Senator Risch--no; Senator Coats--no; Senator 
Rubio--no; Senator Collins--aye; Senator Coburn--no.

Vote to report the committee bill

    On October 31, 2013, a quorum being present, the Committee 
met to consider the bill, as amended. The Committee took the 
following actions:
    The Committee voted to report the bill, as amended, by a 
vote of 11 ayes and 4 noes. The votes in person or by proxy 
were as follows: Chairman Feinstein--aye; Senator Rockefeller--
aye; Senator Wyden--no; Senator Mikulski--aye; Senator Udall--
no; Senator Warner--aye; Senator Heinrich--no; Senator King--
aye; Vice Chairman Chambliss--aye; Senator Burr--aye; Senator 
Risch--aye; Senator Coats--aye; Senator Rubio--aye; Senator 
Collins--aye; Senator Coburn--no.

                       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 November 
7, 2013, the Committee transmitted this bill to the 
Congressional Budget Office and requested it to conduct an 
estimate of the costs incurred in carrying out 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.

                 ADDITIONAL VIEWS OF SENATOR FEINSTEIN

    The Intelligence Committee has conducted ongoing oversight 
of FISA since its enactment in 1978. Through that oversight, 
the Committee has been well aware of the implementation of FISA 
authorities, to include those under the Business Records 
provision (Section 215 of the USA PATRIOT Act and Section 501 
of FISA) and the collection of electronic communications of 
non-U.S. Persons outside of the United States as authorized by 
Section 702 of FISA. That oversight has included among other 
things briefings and written information that we have received 
on the effectiveness of both programs, compliance issues that 
emerged in 2009 (regarding telephony metadata) and 2011 
(regarding Section 702), and the efforts of the National 
Security Agency (NSA), the Department of Justice, and the 
Foreign Intelligence Surveillance Court to faithfully execute 
these programs under the Constitution and the law.
    The Committee's review of these programs, as well as other 
aspects of FISA and signals intelligence collection conducted 
under Executive Order 12333, has been thorough and 
longstanding, but it has intensified since the disclosure of 
previously classified information through a series of press 
accounts beginning in June of this year. The Committee has held 
10 hearings during this period,\1\ plus numerous briefings and 
meetings with government officials, privacy advocates, and 
representatives of private sector companies.
---------------------------------------------------------------------------
    \1\Since the initial press reports based on materials leaked by 
Edward Snowden, the Committee has held hearings, briefings, and other 
full Committee meetings on NSA FISA operations and related intelligence 
activities on June 6, June 11, June 13, June 25, July 16, July 23, 
September 19, September 24, September 26 (in open session), and October 
10.
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    The information we have received in the past several months 
has confirmed our previous understanding of these programs and 
has convinced the Committee that acquisition of telephone call 
records under the Business Records authority and the collection 
of foreign electronic communications under Section 702 of FISA 
should continue.
    Prior to the unauthorized disclosures concerning the NSA's 
telephone metadata program, the Committee had reviewed options 
for shifting the operations of that program so as to keep the 
telephone records with telecommunications providers rather than 
acquire those records and store them at the NSA. The Committee 
reevaluated those options following public acknowledgement of 
the program by the Director of National Intelligence, but 
reached the same conclusion that such an alternative 
arrangement for the NSA program would not meet the Intelligence 
Community's operational needs.
    Separately, the Committee, through its regular oversight, 
also has continued to receive briefings and intelligence 
products related to the threat to the United States from 
terrorism and the other national security challenges that 
require effective signals intelligence collection. It is clear 
that the threat has diversified, geographically around the 
world and in the number of groups involved. It is also clear 
that signals intelligence remains a critical part of our 
intelligence collection on these threats. The need for these 
intelligence programs, therefore, remains.
    Intelligence gathered pursuant to the programs under 
Section 215 of the USA PATRIOT Act and Section 702 of FISA, 
together with NSA's other authorities, has enabled the 
disruption of potential terrorist attacks at home and abroad. I 
strongly believe that the telephone call records program under 
the Section 215 Business Records provision reduces the chance 
of another 9/11-type attack on our homeland. In fact, the call 
records program has played a role in stopping roughly a dozen 
terror incidents in the United States. And it continues to 
contribute to our safety. To end the program at this time will 
substantially increase the risk of another catastrophic attack 
on the United States.
    This is not a surveillance program. In the case of the call 
records program, neither individuals nor their phone 
conversations are being listened to. No one is being monitored. 
The call records collected do not include names, locations or 
other identifying characteristics of telephone calls. If the 
government wants to get the content of any conversations, it 
must obtain a warrant.
    I recognize that for some people, any type of collection of 
their phone records creates unease, particularly those who are 
already distrustful of government. I also understand some 
believe Congress has not done enough to restrain or oversee 
these programs, though I strongly disagree with this view.
    In approving the FISA Improvements Act of 2013, the 
Committee sought to codify existing privacy protections already 
mandated by the FISA Court and internal NSA regulations, and to 
impose new ones. We also sought to increase public 
understanding of the telephone metadata program, and to 
increase oversight conducted by Congress, the FISA Court, and 
the Privacy and Civil Liberties Oversight Board. These efforts 
are described throughout this report.
    I recognize that the reforms in this legislation will be 
seen as insufficient by those who oppose the NSA's call records 
program. I do, however, wish to address two specific points of 
opposition with which I disagree.
     LFirst, in reference to the call records program, 
some people will say that the FISA Improvements Act codifies an 
illegal program. It does not. This legislation does not provide 
any new legislative authority with which the government may 
acquire call records or any other information under Section 
215--in fact, it narrows the existing authority for it. Section 
2 of the FISA Improvements Act clearly prohibits the use of the 
Business Records authority to collect bulk communication 
records except through the supplemental procedures and 
restrictions required by this section, as are detailed in this 
report.
      L  As part of this previously classified program, in 
2006, the Department of Justice sought approval from the FISA 
Court to collect call records in large number under the Section 
215 Business Records provision. The FISA Court approved that 
request, and has reviewed and renewed that authority every 90 
days for the past seven years. These renewal applications have 
been approved by at least 15 different federal court judges 
selected by the Chief Justice of the United States to serve on 
this Court.
      L  The Department of Justice's legal analysis of the call 
records program has recently been publicly released, as have 
the two most recent opinions by the FISA Court as part of the 
reauthorization of the program every 90 days.
      L  Critics of the program may dispute the legal 
reasoning, but there should be no disagreement that this 
program currently is authorized under law and has been 
determined to be legal and Constitutional by the Executive and 
Judicial branches.
     LSecond, there is a contention that this 
legislation authorizes the bulk collection of metadata from 
electronic communications in addition to telephone metadata. 
This is not the case.
      L  The Business Records provision under Section 501 of 
FISA has not been used for bulk electronic metadata collection 
(from emails, for example) in the past, and it is not the 
intent to authorize such collection here. The Department of 
Justice has previously sought and received authority to collect 
metadata from electronic communications under a separate 
provision--Section 402--of FISA (the pen register/trap and 
trace provision.) This Internet metadata collection program 
authorized by the FISA Court was discontinued in 2011 for 
operational and resource reasons and has not been restarted.
      L  To the extent such bulk electronic metadata collection 
is already permissible under Section 215, the effect of this 
legislation is to limit that collection, not to authorize it.

                                                  Dianne Feinstein.

    ADDITIONAL VIEWS OF SENATORS KING, COLLINS, WARNER AND MIKULSKI

    Among other important provisions, this Bill contains two 
amendments we authored and/or supported, and which provide 
greater accountability, improved transparency and multiple 
layers of oversight to the FISA process.
    The Amicus Curiae (friend of the court) provision ensures 
the Foreign Intelligence Surveillance Court has access to 
independent expertise to help the Court oversee sensitive 
intelligence programs while also safeguarding the 
Constitution's Fourth Amendment privacy protections. This 
provision enables the FISA Court to appoint an outside expert--
including individuals with backgrounds in privacy, civil 
liberties, intelligence collection, telecommunications, or any 
other area in which the Court determines it could benefit from 
specialized legal or technical expertise--when a matter before 
the Court involves a novel or significant interpretation of the 
law that could have civil liberties implications.
    The Privacy and Civil Liberties Oversight Board provision 
provides an additional layer of oversight to the FISA process 
by strengthening the oversight role of an independent, 
respected body focused on privacy and civil liberties--separate 
from other checks by all three branches of government including 
Congress and the Judiciary.
    We need to be able to show the American people that the 
Intelligence Community can perform their primary function of 
protecting national security while also enhancing Americans' 
civil liberties and privacy protections guaranteed by the 
Constitution.

                                   Angus King.
                                   Susan M. Collins.
                                   Mark R. Warner.
                                   Barbara A. Mikulski.

          MINORITY VIEWS OF SENATORS WYDEN, UDALL AND HEINRICH

    This bill represents the Senate Intelligence Committee's 
response to the recent disclosures of large-scale domestic 
surveillance programs, which were made earlier this year and 
which have triggered a national debate about surveillance 
policy. We are disappointed that this bill seems to work from 
the premise that the problem with these programs is not that 
they are overly intrusive, or that they were authorized under 
an anachronistic legal process, or that their usefulness has 
been greatly exaggerated, but rather that the law does not 
authorize and describe them as clearly as it should. To address 
this, this bill would codify the government's authority to 
collect the phone records of huge numbers of law-abiding 
Americans, and also to conduct warrantless searches for 
individual Americans' phone calls and emails. We respectfully 
but firmly disagree with this approach.
    During the Intelligence Committee's consideration of this 
bill, we offered a number of amendments that would have made 
real reforms to US surveillance law and ensured the protection 
of both American security and American liberties. One of these 
amendments was a substitute amendment based on bipartisan 
surveillance reform legislation--the Intelligence Oversight and 
Surveillance Reform Act--that we have sponsored with a number 
of other Senators. This legislation would end the bulk 
collection of Americans' personal information while still 
allowing intelligence agencies to obtain information that they 
legitimately need for national security purposes.
    Our legislation would also make a number of other needed 
reforms as well--in particular, it would prohibit the 
government from conducting warrantless ``back-door searches'' 
for Americans' communications under Section 702 of the Foreign 
Intelligence Surveillance Act, and it would create a 
Constitutional Advocate to present an opposing view when the 
Foreign Intelligence Surveillance Court is considering major 
questions of law or constitutional interpretation. In contrast, 
the bill that the Intelligence Committee is now reporting would 
give intelligence agencies wide latitude to conduct warrantless 
searches for Americans' phone calls and emails under Section 
702. And while it would allow the Foreign Intelligence 
Surveillance Court to request amicus briefs from outside 
parties, this would unfortunately not guarantee that both sides 
of an argument would be presented to the Court on important 
cases.
    Senator Udall also offered an amendment that would have 
specifically prohibited the dragnet collection of Americans' 
phone records and other personal information. In our judgment, 
collecting the phone records of huge numbers of law-abiding 
Americans is a major intrusion on these Americans' privacy. As 
Vice President Biden put it several years ago, ``I don't have 
to listen to your phone calls to know what you're doing. If I 
know every single phone call you made, I'm able to determine 
every single person you talked to. I can get a pattern about 
your life that is very, very intrusive.''
    In our judgment, writing a law that permits the government 
to engage in this massive dragnet collection as long as there 
are rules about when officials can look at these phone records 
does not begin to solve the problem of overly intrusive 
domestic surveillance. When the Framers of the Constitution 
wrote the Bill of Rights, they did not say that government 
officials were allowed to issue general warrants as long as 
they had rules about when they could look at the papers they 
seized. They believed that government officials should not 
seize the records of individual Americans without evidence of 
wrongdoing, and they embodied this principle in the Fourth 
Amendment.
    In our view, the bulk collection of Americans' phone 
records is particularly egregious because we have yet to see 
evidence that it provides real value in protecting national 
security. Despite our repeated requests, the NSA still has not 
provided any examples of instances where they used this program 
to review phone records that could not have been obtained using 
a regular court order or emergency authorization and that 
provided useful information about terrorist activities. If 
government agencies identify a suspected terrorist, they should 
absolutely go to the relevant phone companies to get that 
person's phone records. But this can be done without collecting 
the records of huge numbers of ordinary Americans.
    Senator Heinrich also offered an amendment that would have 
prohibited the NSA from collecting Americans' cell phone 
location information in bulk, while still permitting the 
government to acquire this information with an individualized 
warrant. We are particularly disappointed that this amendment 
was rejected by the Committee. NSA officials have testified 
that they are not engaged in the bulk collection of Americans' 
cell-site location information today, and have acknowledged 
collecting ``samples'' of this data in the past, but they have 
repeatedly declined to publicly answer questions from the three 
of us and other Senators about whether they have previously 
collected or made plans to collect this information in bulk, 
and they have specifically said that the NSA could collect this 
information in bulk in the future. By rejecting the Heinrich 
amendment and still approving the underlying bill, the 
Intelligence Committee has effectively voiced support for 
giving the executive branch the authority to turn the cell 
phone of every man, woman, and child in America into a tracking 
device. We strenuously disagree with this approach and we will 
continue to work to ensure that Americans' daily movements are 
not tracked without evidence of wrongdoing.
    While we have served on the Intelligence Committee for 
varying lengths of time, all three of us can attest that our 
nation's intelligence professionals are overwhelmingly 
dedicated and patriotic men and women who make real sacrifices 
to help keep our country safe and free. We believe that they 
should be able to do their jobs secure in the knowledge that 
their agencies have the trust and confidence of the American 
people. This trust has been undermined by overly intrusive 
domestic surveillance programs and misleading statements made 
by senior officials over a period of many years. The way to 
rebuild this public trust is to reform surveillance law and end 
the dragnet surveillance of ordinary Americans in a way that 
preserves intelligence agencies' ability to collect information 
that is actually necessary for the preservation of American 
security, and we will continue to work with our Senate 
colleagues to achieve this goal.

                                   Ron Wyden.
                                   Mark Udall.
                                   Martin Heinrich.
                        CHANGES IN EXISTING LAWS

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                                  
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