The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773
Released: 2008-06-12T00:00:00

Introduction

Recent media reports suggest possible movement in the negotiations on legislation to amend the Foreign Intelligence Surveillance Act (FISA). These negotiations are the most recent development in a wide range of legislative and oversight activity in the 110 th Congress regarding FISA.

During the 110 th Congress, several House and Senate committees have engaged in oversight activities, including hearings and requests for expeditious production of documents and information regarding the Administration's warrantless foreign intelligence surveillance programs, as possible changes to the Foreign Intelligence Surveillance Act of 1978, as amended, were explored. In July 2007, an unclassified summary of the National Intelligence Estimate on "The Terrorist Threat to the U.S. Homeland" was released. It expressed the judgment, in part, that the U.S. Homeland will face a persistent and evolving threat over the next three years, the main threat coming from Islamic terrorist groups and cells, particularly Al Qaeda. On August 2, 2007, the Director of National Intelligence (DNI) released a statement on "Modernization of the Foreign Intelligence Surveillance Act." In his statement, Admiral McConnell viewed such modernization as necessary to respond to technological changes and to meet the Nation's current intelligence collection needs. He deemed it essential for the intelligence community to provide warning of threats to the United States. He perceived two critically needed changes. First, he stated that a court order should not be required for gathering foreign intelligence from foreign targets located overseas, although he did agree to court review of related procedures after commencement of the needed collection. Second, he contended that liability protection was needed for those who furnished aid to the government in carrying out its foreign intelligence collection efforts.

Legislative Activity

On August 5, 2007, the Protect America Act of 2007 (PAA), P.L. 110-55 , was enacted into law with a 180-day sunset provision, providing a temporary solution to concerns raised by the Director of National Intelligence. On January 28, 2008, a cloture motion on an amendment proposed by Senator Reid to S. 2248 to extend the sunset on the Protect America Act for an additional 30 days ( S.Amdt. 3918 ) fell short of the required votes. On January 29, 2008, both the House and the Senate passed H.R. 5104 , a 15-day extension to the sunset for the Protect America Act, to allow further time to consider proposed legislation to amend FISA, while ensuring that the intelligence community would have the authority it needed in the intervening period. It became which became P.L. 110-182 . On February 13, 2008, the House rejected H.R. 5349 , which would have extended the sunset provision for an additional 21 days. Bills have been introduced in the Senate to extend the sunset from 180 to 210 days ( S. 2541 , S. 2556 , and S. 2615 ), or to extend it to July 1, 2009 ( S. 2557 ). The Protect America Act sunseted on February 16, 2008. Under transitional provisions in Section 6 of P.L. 110-55 , acquisitions authorized while the PAA was in force and related directives would remain in effect until their expiration dates. Under the terms of the PAA, such acquisitions could be authorized for up to one year.

The House and the Senate each have passed bills to provide a longer-term statutory approach to these concerns. H.R. 3773 , the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007 or the RESTORE Act of 2007, was introduced in the House of Representatives on October 9, 2007, and was referred to the House Judiciary Committee and the House Permanent Select Committee on Intelligence. The bill was reported out of the House Judiciary Committee, as amended, on October 12, 2007, H.Rept. 110-373 , Part 1. The same day, the measure was reported out of the House Permanent Select Committee on Intelligence, as amended, H.Rept. 110-373 , Part 2. On October 16, 2007, H.Res. 746 was reported out of the House Committee on Rules, H.Rept. 110-385 , providing for consideration of an amendment in the nature of a substitute, as modified, to H.R. 3773 , in lieu of the amended versions of H.R. 3773 reported out of the House Judiciary Committee and the House Permanent Select Committee on Intelligence. The resolution was agreed to on October 17, 2007. On November 15, 2007, the House passed H.R. 3773 .

On October 26, 2007, S. 2248 , the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original bill, was reported out of the Senate Select Committee on Intelligence by Senator Rockefeller, S.Rept. 110-209 . S. 2248 was referred to the Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248 was reported out of the Senate Judiciary Committee by Senator Leahy with an amendment in the nature of a substitute, without a written report. The written report was filed on January 22, 2008, S.Rept. 110-258 . On December 14, 2007, Senator Reid made a motion to proceed with consideration of S. 2248 , and presented a cloture motion on the motion to proceed. The motion to proceed was then withdrawn. On December 17, 2007, the Senate considered the motion to proceed with the measure. Cloture on the motion to proceed was invoked by a vote of 76-10. After some debate in the closing hours before the Senate broke for the holidays, a decision was made to revisit the measure when the Members returned in January.

Senate floor activities on S. 2248 resumed on January 23 and 24, 2008. On January 24, 2008, a modified version of the Senate Judiciary Committee's amendment in the nature of a substitute to S. 2248 was tabled by a vote of 60-36. Senator Reid sought unanimous consent for consideration of the House-passed bill, H.R. 3773 , but Senator McConnell objected. Senator Rockefeller, for himself and Senator Bond, proposed an amendment in the nature of a substitute to S. 2248 ( S.Amdt. 3911 , the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or the FISA Amendments Act of 2008). On January 28, 2008, a cloture motion by Senator McConnell on this amendment failed to pass. A number of other amendments to S.Amdt. 3911 to S. 2248 were proposed and considered between January 24 and February 12, 2008.

On February 12 th , pursuant to an agreement and order of January 31, 2008, S.Amdt. 3911 to S. 2248 , as amended, was agreed to, and the bill was read for the third time. The Senate then agreed to a cloture motion on S. 2248 . After debate, the Senate passed S. 2248 , as amended, by a vote of 68-29. Pursuant to the previous order, H.R. 3773 was taken up, all but the enacting clause was stricken and the text of S. 2248 , as amended, was inserted in lieu thereof. The bill was advanced to the third reading, passed, and the motion to reconsider was laid upon the table. Passage of S. 2248 was then vitiated and the bill was returned to the calendar. A message on the Senate action was sent to the House the following day.

On March 12, 2008, the House Rules Committee reported H.Res. 1041 to the House. The resolution passed the House two days later. Pursuant to the resolution, the House considered and agreed to a House amendment to the Senate amendment to H.R. 3773 , also entitled the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or the FISA Amendments Act of 2008, by a vote of 213-197, with one voting present (Roll no. 145). The House and Senate have not gone to conference on FISA legislation. Instead, negotiations are ongoing to find a means of resolving their differences.

Summary of Selected Portions of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment

Both the Senate amendment to H.R. 3773 and the House amendment to the Senate amendment to H.R. 3773 include amendments to the Foreign Intelligence Surveillance Act. The House amendment differs in a number of ways from the Senate-passed version of the bill. For example, the Senate amendment to H.R. 3773 provides, in new section 701 of FISA, that nothing in the definition of "electronic surveillance" under subsection 101(f) of FISA, 50 U.S.C. § 1801(f), shall be construed to encompass surveillance that is targeted in accordance with proposed title VII of the Foreign Intelligence Surveillance Act (FISA) at a person reasonably believed to be located outside the United States. The House has no parallel provision in its bill.

The two bills differ in their treatment of the role of the Foreign Intelligence Surveillance Court (FISC) with respect to procedures for acquisitions for the purpose of gathering foreign intelligence information of the contents of communications of U.S. persons and non-U.S. persons located outside the United States.

In the absence of an emergency authorization, the House amendment requires prior approval by the FISC of the applicable targeting procedures, minimization procedures, and certification before the Attorney General and the Director of National Intelligence (DNI) may authorize acquisition of the contents of communications of non-U.S. persons reasonably believed to be located outside the United States. The FISC would have 30 days after a certification is submitted to review the certification and the targeting and minimization procedures and to approve or deny an order regarding such an acquisition. The House bill also requires the Attorney General, in consultation with the DNI, to adopt guidelines to ensure compliance with limitations imposed by the bill on such acquisitions and to ensure that an application is filed under section 104 or 303 of FISA, if required by that act. The guidelines are to be submitted to the FISC, the congressional intelligence committees, and the House and Senate Judiciary Committees.

Under the House bill, if the FISC finds that the certification satisfies statutory requirements and targeting and minimization procedures are consistent with statutory standards and constitutional requirements under the Fourth Amendment, the FISC is to approve the certification and use of the procedures for the acquisition. In a non-emergency situation, if the FISC finds that a certification or applicable procedures fall short of these requirements, the court would deny the order, identify any deficiency in the certification or the procedures, and provide the government with an opportunity to correct such deficiency. If the Attorney General and the DNI determine that an emergency situation exists, that immediate action by the Government is required, and that time does not permit the completion of judicial review prior to the initiation of an acquisition, they may authorize the acquisition and submit a certification to the FISC as soon as possible but in no event more than seven days after the determination is made. In the context of an emergency authorization, the FISC would enter an order directing the government, at the government's election and to the extent required by the FISC's order, to correct any deficiency within 30 days or cease the acquisition.

In contrast, the Senate bill does not require prior approval by the FISC of applicable certifications, targeting procedures and minimization procedures in connection with the acquisition of communications of non-U.S. persons abroad, nor does it require adoption and submission of compliance guidelines. Rather, the Senate bill requires submission of a certification or a targeting or minimization procedure, or an amendment thereto, to the FISC within five days of making or amending the certification or adopting or amending the procedure. Where the Attorney General and the DNI determine that immediate action is required and time does not permit preparation of a certification prior to initiation of an acquisition, the Senate bill requires the Attorney General and the DNI to prepare the certification, including such determination, within seven days after the determination is made. If the FISC finds that a certification meets statutory requirements and targeting and minimization procedures are consistent with statutory requirements and meet constitutional standards under the Fourth Amendment, the FISC would enter an order approving continued use of the procedures involved. If the court finds that the required standards are not met, then the FISC would enter an order directing the government, at the government's election and to the extent required by the FISC order, to correct any deficiencies within 30 days or cease the acquisition.

The House provides that nothing in its bill is to be construed to require an application under section 104 of FISA for an acquisition that is targeted in accordance with new section 703 of FISA at a non-U.S. person reasonably believed to be located outside the United States. The Senate bill has no similar language.

Both bills provide for targeting of U.S. persons reasonably believed to be located outside the United States for up to 90 days pursuant to a FISC order if statutory criteria are met. Such an order could be renewed for additional 90 day periods upon submission of renewal applications meeting the same standards. In the case of an emergency authorization by the Attorney General of an acquisition, each bill requires notice to a FISC judge by the Attorney General or his designee at the time the decision is made to conduct such an acquisition and requires the filing of an application for a FISC order within seven days of the Attorney General's authorization of the emergency acquisition. Applicable minimization procedures would apply to such an acquisition. In the absence of a judicial order approving an acquisition originally authorized by the Attorney General on an emergency basis, the acquisition would terminate when the information sought is obtained, when an application for the order is denied, or when seven days have elapsed, whichever is earliest. Without a FISC order, no information acquired or evidence derived from an emergency acquisition, except under circumstances where the target of the acquisition is determined not to be a U.S. person, may be received in evidence or disclosed in federal, state, or local proceedings; nor could any information concerning a U.S. person acquired from such acquisition subsequently be used or disclosed in any other manner by federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

The House and Senate bills differ as to how they craft language emphasizing the exclusivity of FISA as a means of engaging in electronic surveillance to gather foreign intelligence information. The House amendment would add a new section to FISA, providing that "the procedures of chapters 119, 121, and 206 of title 18, United States Code, and [FISA] shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted," except for "an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code." The Senate amendment to H.R. 3773 would add a new section FISA, providing that "[t]he procedures of chapters 119, 121, and 206 of title 18, United States Code, and [FISA] shall be the exclusive means by which electronic surveillance (as defined in section 101(f), regardless of the limitation of section 701) and the interception of domestic wire, oral, or electronic communications may be conducted."

Both bills would expand the definition of "foreign power" and "agent of a foreign power" under FISA to address groups or individuals, other than U.S. persons, that engage in international proliferation of weapons of mass destruction or activities in preparation therefor, although the House and Senate definitions of these terms differ somewhat. Both bills would also permit federal officers who engage in electronic surveillance or physical searches to obtain foreign intelligence information to consult with federal, state, or local law enforcement personnel to coordinate to investigate against international proliferation of weapons of mass destruction.

While both the House and the Senate provide prospective limitations of liability for those who furnish aid to the government in connection with acquisitions authorized under their respective bills, they differ in their treatment of electronic communication service providers who assisted the government with warrantless electronic surveillance for foreign intelligence purposes between September 11, 2001 and January 17, 2007. Title II of the Senate's version includes retroactive immunity for electronic communication service providers who may have furnished aid to the government from September 11, 2001, through January 17, 2007, if certain criteria are satisfied. The House measure does not afford retroactive immunity to electronic communications service providers who may have furnished aid to the government in connection with the Terrorist Surveillance Program or other intelligence activities in the wake of the terrorist attacks of September 11, 2001.

Title II of the House amendment provides a procedure by which a court, while taking steps to protect classified information, could examine submissions, arguments and information with respect to which state secrets privilege has been asserted in covered civil actions against such electronic communications service providers and other persons who may have furnished such aid to the government. The Senate amendment contains no parallel language.

In addition, the House amendment provides for an audit by the Inspector General of the Department of Justice of the Terrorist Surveillance Program and any similar programs. Within 30 days of completion of the audit, the bill would require that the report be submitted to the House and Senate intelligence committees and the House and Senate judiciary committees, along with any underlying documentation. The Senate bill has no similar provision. The House bill would also establish a Commission on Warrantless Electronic Surveillance within the legislative branch. No parallel provision exists in the Senate Amendment to H.R. 3773 . The House bill provides additional manpower and training to facilitate submission to and disposition of applications to the FISC. The Senate amendment to H.R. 3773 does not address this issue.

In the following table, this report provides a detailed side-by-side comparison of the provisions of these two measures, using H.R. 3773 as passed by the Senate as the basis for the comparison. As title I of FISA defines a number of key terms critical to understanding the import of the bills' language, a glossary of FISA terms as defined in section 101 of FISA, 50 U.S.C. § 1801 is attached to assist in understanding the effect of these measures.

Glossary of FISA Terms from 50 U.S.C. § 1801

As used in title I of FISA, 50 U.S.C. § 1801 et seq .:

(a) "Foreign power" means—

(1) a foreign government or any component thereof, whether or not recognized by the United States;

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

(4) a group engaged in international terrorism or activities in preparation therefor;

(5) a foreign-based political organization, not substantially composed of United States persons; or

(6) an entity that is directed and controlled by a foreign government or governments.

(b) "Agent of a foreign power" means—

(1) any person other than a United States person, who—

(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;

(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or

(C) engages in international terrorism or activities in preparation therefore; or

(2) any person who—

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

(c) "International terrorism" means activities that—

(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

(2) appear to be intended—

(A) to intimidate or coerce a civilian population;

(B) to influence the policy of a government by intimidation or coercion; or

(C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

(d) "Sabotage" means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States.

(e) "Foreign intelligence information" means—

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

(f) "Electronic surveillance" means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

(g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code.

(h) "Minimization procedures," with respect to electronic surveillance, means—

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

(j) "United States," when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.

(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

(l) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.

(m) "Person" means any individual, including any officer or employee of the federal government, or any group, entity, association, corporation, or foreign power.

(n) "Contents," when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.