Congress Intelligence Surveillance & Privacy

Summary: FISA Amendments Reauthorization Act

Chinmayi Sharma
Friday, October 27, 2017, 3:30 PM

NOTE: This post summarizes the text of Sen. Richard Burr's bill as it stood before a closed committee markup hearing on Oct. 25. An updated bill is now available here.

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NOTE: This post summarizes the text of Sen. Richard Burr's bill as it stood before a closed committee markup hearing on Oct. 25. An updated bill is now available here.

On Monday, the Senate Select Committee on Intelligence (SSCI) released a draft bill called the FISA Amendments Reauthorization Act, proposed by Sen. Richard Burr, the committee’s chairman. Wednesday, the proposal underwent closed committee markup.

The bill passed a committee vote, 12-3, following its introduction on Tuesday. Below is a summary of the key provisions.

Title I

Section 2: Eight-Year Extension of FISA Amendments Act of 2008

This section extends FISA Amendment Act of 2008 until December 31, 2025—two years beyond the proposed sunset in the House Judiciary Committee's bill, the USA Liberty Act.

Section 3: Congressional Review and Oversight of Abouts Collection

This section codifies permission for the intelligence community to resume the “abouts” collection surveillance program that the NSA voluntarily halted earlier this year. The new addition defines “abouts communication” as communication that contains “reference to, but is not to or from, a facility, a place, premises or property at which an acquisition authorized” is directed or conducted.

The new provisions also require the attorney general and the DNI to make a formal, written report to the House and Senate judiciary and intelligence committees before resuming “abouts” collection. The bill then grants Congress the authority to approve or disapprove of the proposed resumption of the program following a 30-day waiting period. In the notice to Congress, the intelligence committee must include (1) the application for certification of the program submit to the FISA court; (2) any orders or decisions of the FISA court regarding the application for certification; (3) protections put in place to detect material breach, or noncompliance; and (4) data or modeling results that support that the proposed program will be conducted in accordance with the rest of 702.

This section also provides for an expedited review of any bill in the House or Senate prohibiting the acquisition of abouts communications in response to notice by the intelligence community of intent to resume the program or notice of an emergency authorization to collect abouts communications. Emergency authorizations are permitted before the end of Congress’s 30-day review if (1) the FISC approves certification of the abouts collection program, (2) Congress has not enacted legislation prohibiting such collection, and the attorney general and DNI jointly determine that “exigent circumstances exist such that without such immediate implementation or continuation, intelligence important to the national security of the United States may be lost or not timely acquired.” The clause only requires that information be “important” to the national security of the United States, instead of the traditional standard that “a significant purpose” be for foreign intelligence or the historical bar that a “primary purpose” be for foreign intelligence

Finally, the section requires the intelligence agencies involved in the acquisition of abouts communication to report material breaches to House and Senate Judiciary Committees and Committees on Intelligence. (Section 7, described fully below, reflects that the PCLOB is no longer considered an agency under this Act and is not covered by this provision.)

Section 4: Appointment of Amicus Curiae

This section requires the appointment of an amicus under the presumed resumption of the “abouts” collection program.

Section 5: Minimization and Disclosure Provisions

This section prohibits the use of 702 information of a U.S. person against that U.S. person in a domestic lawsuit except as evidence of an enumerated crime. These crimes include crimes that involve, affect or relate to: the national security of the United States; death; kidnapping; serious bodily injury; criminal offense against a minor, including child pornography; incapacitation or destruction of critical infrastructure; cybersecurity, including Computer Fraud and Abuse Act violations; transnational crimes, including narcotics transfers or organized crime; and human trafficking.

Additionally, this section requires the intelligence community to report (1) the number of people targeted under 702; (2) the number of non-U.S. persons targeted under 702; (3) the number of U.S. persons targeted under 702; (4) the number of FBI queries on 702 databases for criminal evidence unrelated to foreign intelligence resulting in positive hits; (5) the number of domestic FBI investigations authorized partially or entirely based on 702 information; and (6) the number of criminal proceedings in the U.S. at the federal, state or local level that received notice of an intent to use 702 information as evidence.

Section 6: Section 705 Emergency Provision

This section allows the attorney general to target known U.S. persons for the purpose of gathering foreign intelligence without a FISC order when the attorney general has already been authorized to conduct an emergency electronic or physical search of a non-U.S. person pursuant to Sections 105 (conditions permitting an emergency electronic surveillance) or 304 (conditions permitting an emergency physical search) and the U.S. person is reasonably believed to be located abroad. Now, the attorney general can surveil U.S. persons overseas for up to seven days without a FISC order as long as an emergency situation permitting the surveillance of a non-U.S. person has been established.

Section 7: Privacy and Civil Liberties Oversight Board Reform

This section redefines “agency” in Section 552b(a)(1) of tle 5 of the U.S. Code to no longer include the PCLOB. Section 552b sets forth principles and procedures that agencies, as defined by 552b(a)(1), must comply with in regards to open meetings. This redefinition exempts PCLOB from requirements that any meeting of the five commissioners must be open to public observation and information pertaining to these meetings, such as reports presented or discussed, must be disclosed to the public unless public interest necessitates otherwise

Chinmayi Sharma is an Associate Professor at Fordham Law School. Her research and teaching focus on internet governance, platform accountability, cybersecurity, and computer crime/criminal procedure. Before joining academia, Chinmayi worked at Harris, Wiltshire & Grannis LLP, a telecommunications law firm in Washington, D.C., clerked for Chief Judge Michael F. Urbanski of the Western District of Virginia, and co-founded a software development company.

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