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«Congressional Research Service 7-5700 R42725 CRS Report for Congress Prepared for Members and Committees of Congress Reauthorization of ...»

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Reauthorization of the FISA Amendments Act

Edward C. Liu

Legislative Attorney

April 8, 2013

Congressional Research Service

7-5700

www.crs.gov

R42725

CRS Report for Congress

Prepared for Members and Committees of Congress

Reauthorization of the FISA Amendments Act

Summary

On December 30, 2012, President Obama signed H.R. 5949, the Foreign Intelligence Surveillance

Act (FISA) Amendments Act Reauthorization Act of 2012, which extends Title VII of FISA until

December 31, 2017.

Reauthorizations of expiring provisions of FISA have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015.

For a more detailed discussion of these three provisions, see CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu.

In contrast, the reauthorization debated and passed in 2012 deals with Title VII of FISA, as added by the FISA Amendments Act of 2008. Title VII is only tangentially related to the subjects of the previous years’ debates in that they are amendments to the same statute. Therefore, the legislative activity in prior years should be conceptually separated from the current debate and legislation that would address the expiration of Title VII of FISA at the end of this year.

Title VII of FISA, as added by the FISA Amendments Act of 2008, created new separate procedures for targeting non-U.S. persons and U.S. persons reasonably believed to be outside the United States. While some provisions of Title VII could be characterized as relaxing FISA’s traditional standards for electronic surveillance and access to stored communications, other provisions of Title VII have expanded FISA’s scope to require judicial approval of activities, such as surveillance of U.S. persons on foreign soil, that were previously unregulated by the statute.

Upon enactment of Title VII, a number of organizations brought suit challenging newly enacted procedures for surveillance of non-U.S. persons reasonably believed to be abroad. The suit alleged that this authority violated the targets’ Fourth Amendment rights, because it permitted acquisition of international communications without requiring an individualized court order supported by probable cause. However, on February 26, 2013, in Clapper v. Amnesty International, the United States Supreme Court dismissed the suit because the plaintiffs had not suffered a sufficiently concrete injury to have legal standing to challenge Title VII. Therefore, the Court did not decide the merits of the Fourth Amendment question.

Congressional Research Service Reauthorization of the FISA Amendments Act Contents Overview of FISA and Other Laws Governing Surveillance

Electronic Communications Privacy Act (ECPA)

Executive Order 12333

Fourth Amendment

Procedure for Targeting Non-U.S. Persons Abroad Without Individualized Court Orders Under § 702

Scope of Acquisitions

Certification Procedure

Exigent Circumstances

Comparison with Prior Law

Legal Challenges

Procedures for Targeting U.S. Persons Abroad Using Court Orders Under §§ 703 and 704........... 8 Requirement for Court Order

Scope of Acquisitions

Procedures

Comparison of §§ 703 and 704

Comparison with Prior Law

Sunset

Contacts Author Contact Information

–  –  –

R eauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (FISA) have been an annual occurrence in Congress since 2009.1 Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act).2 Most recently, in 2011, these three provisions were extended until June 1, 2015.3 For a more detailed discussion of these three provisions, see CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu.

In contrast, the reauthorization debated and passed in 2012 deals with Title VII of FISA, as added by the FISA Amendments Act of 2008. Title VII is only tangentially related to the subjects of the previous years’ debates in that it amends the same statute. Therefore, the legislative activity in prior years should be conceptually separated from the current debate and legislation that would address the expiration of Title VII of FISA at the end of this year. This report describes the changes that were made by the FISA Amendments Act within the context of the government’s authority to conduct surveillance for foreign intelligence purposes.

On December 30, 2012, President Obama signed H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012, which extends Title VII of FISA until December 31, 2017.

Overview of FISA and Other Laws Governing Surveillance The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence information,4 obtain authorization to conduct wiretapping5 or physical searches,6 utilize pen registers and trap and trace devices,7 or access specified business records and other tangible things.8 Authorization for such activities is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created by FISA to act as a neutral judicial decision maker in the context of activities authorized by the statute.





Department of Defense Appropriations Act, P.L. 111-118, §1004 (2009); An Act to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, P.L. 111-141 (2010); FISA Sunsets Extension Act of 2011, P.L. 112-3 (2011);

PATRIOT Sunsets Extension Act of 2011, P.L. 112-14 (2011).

P.L. 107-56. In reality, only two of these provisions (relating to roving wiretaps and access to business records) were part of the USA PATRIOT Act. The third provision (relating to lone-wolf terrorists) initially arose from the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458.

P.L. 112-14.

Although FISA is often discussed in relation to the prevention of terrorism, it applies to the gathering of foreign intelligence information for other purposes. For example, it extends to the collection of information necessary for the conduct of foreign affairs. See 50 U.S.C. §1801(e) (2008) (definition of “foreign intelligence information”).

50 U.S.C. §§1801-1808.

50 U.S.C. §§1822-1826.

50 U.S.C. §§1841-1846. Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of a call on a particular telephone line. See 18 U.S.C. §3127(3)-(4) (2008).

50 U.S.C. §§1861-1862 (2008).

–  –  –

Title VII, added by the FISA Amendments Act of 2008, provides additional procedures for the acquisition of foreign intelligence information regarding persons who are believed to be outside of the United States. These provisions affect both U.S. persons9 as well as other non-U.S. persons.

Specifically, the FISA Amendments Act added

• a new procedure for targeting non-U.S. persons abroad without individualized court orders;10

• a new requirement to obtain an individualized court order when targeting U.S.

persons abroad;11 and

• new procedures that can be used to obtain court orders authorizing the targeting of U.S. persons abroad for electronic surveillance, the acquisition of stored communications, and other means of acquiring foreign intelligence information.12 FISA is just one of several federal laws that govern the use of electronic surveillance for legitimate investigative purposes. The principal others are the Electronic Communications Privacy Act (ECPA), Executive Order 12333, and the Fourth Amendment. Each of these, and the manner in which they may overlap or interact with FISA, will be discussed briefly before turning to the provisions added by the FISA Amendments Act.

Electronic Communications Privacy Act (ECPA) ECPA provides three sets of general prohibitions accompanied by judicially supervised exceptions to facilitate law enforcement investigations.13 The prohibitions address (1) the interception of wire, oral, or electronic communications (wiretapping);14 (2) access to the content of stored electronic communications and to communications transaction records;15 and (3) the use of trap and trace devices and pen registers (essentially in-and-out secret “caller id” devices).16 In some circumstances, the use of surveillance activities for foreign intelligence purposes might fall within the scope of the activities prohibited by ECPA. There are two exceptions to ECPA’s general prohibitions that address this situation.

First, if the activity in question falls within the definition of electronic surveillance under FISA, then it may be conducted if the government complies with FISA’s procedures. For example, the A U.S. person is defined as a citizen of the United States, an alien lawfully admitted for permanent residence, 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. 50 U.S.C. §1801(i).

50 U.S.C. §1881a.

50 U.S.C. §1881c(a)(2).

50 U.S.C. §§1881b, 1881c.

See CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by Gina Stevens and Charles Doyle, for a more detailed discussion of the federal laws governing wiretapping and electronic eavesdropping, along with appendices including copies of the texts of ECPA and FISA.

18 U.S.C. §§2510-2522.

18 U.S.C. §§2701-2712.

18 U.S.C. §§3121-3127. Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of a call on a particular telephone line. See 18 U.S.C. §3127(3)-(4).

–  –  –

interception of a domestic telephone call is the type of activity that would generally be prohibited by ECPA. It would also qualify as electronic surveillance under FISA. Therefore, if the government obtained a court order from the FISC authorizing the interception of that call, it would be a lawful surveillance activity notwithstanding the general prohibition against wiretapping found in ECPA.

Second, if the activity in question is not electronic surveillance, as that term is defined in FISA, but involves the acquisition of foreign intelligence information from international or foreign communications, then it is not subject to ECPA.17 For example, the interception of an international telephone call would not be considered electronic surveillance for purposes of FISA if the target were the person on the non-domestic end of the conversation and the acquisition would not occur on United States soil. So long as the purpose of that acquisition was to acquire foreign intelligence information, then it would not be subject to the general prohibitions in ECPA.

Although both exceptions result in the non-application of ECPA, they differ in one important aspect that is particularly relevant to understanding the changes wrought by Title VII of FISA.

Both ECPA and FISA provide that the two statutes constitute the exclusive means of conducting electronic surveillance, as defined in FISA.18 As a result, using the procedures under FISA is compulsory for those activities that qualify as electronic surveillance but cannot be accomplished by, and are exempt from, ECPA. In contrast, prior to the FISA Amendments Act, FISA’s procedures were generally never needed for wiretapping activities that did not qualify as electronic surveillance, and which were also exempt from ECPA because they involved international or foreign communications. However, as discussed below, the recently added § 704 of FISA does make FISA’s procedures compulsory when the target of such surveillance is a United States person. Those activities that remain beyond the scope of either ECPA or FISA are governed by Executive Order 12333 and the Fourth Amendment, discussed in the next two sections.

Executive Order 12333 Section 2.5 of Executive Order 12333,19 as amended,20 delegates to the Attorney General the power to approve the use of any technique for intelligence purposes within the United States or against a U.S. person abroad. If a warrant would be required for law enforcement purposes, the executive order requires the Attorney General to determine in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. The authority delegated by Executive Order 12333 must be exercised in accordance with FISA, but also extends to activities beyond FISA’s reach.

18 U.S.C. §2511(2)(f). (explicitly disavowing any application of ECPA to the acquisition by the United States of foreign intelligence information from international or foreign communications through a means other than electronic surveillance, as that term is defined in FISA.).

18 U.S.C. §2511(2)(f); 50 U.S.C. §1812(a).

46 Federal Register 59,941 (December 4, 1981), as amended by E.O. 13284, 68 Federal Register 4,075 (January 23, 2003); E.O. 13355, 69 Federal Register 53,593 (August 27, 2004); and E.O. 13470, 73 Federal Register 45,325 (July 30, 2008).

50 U.S.C. §401 note.

–  –  –



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