S 139 – FISA Amendments Reauthorization Act of 2017

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Week ending January 12, 2018

S 139 – FISA Amendments Reauthorization Act of 2017

Brief

S 139 would extend for four years the authority of the federal government to conduct surveillance under title VII of the Foreign Intelligence Surveillance Act (FISA) of 1978  and by the USA FREEDOM Act of 2015 (Public Law 114-23) set to expire on December 31, 2017.

(Minority Views)

(Full text of S. 139 as HR 4478congress.gov)

SponsorRep. Nunes, Devin [R-CA-22] (Introduced 11/29/2017)

Status: Passed House / Passed Senate / Conference

VOTES and FLOOR ACTION

HOUSE

On Passage: n passage Passed by the Yeas and Nays: 256 – 164 (Roll no. 16)

House Amendments:

Motion to recommit: On motion to commit with instructions Failed by recorded vote: 189 – 227 (Roll no. 15).

Text of the motion:

he House proceeded with 10 minutes of debate on the Himes motion to commit with instructions. The instructions contained in the motion seek to report the bill back to the House with an amendment to strengthen the provisions related to obtaining warrants to query information collected on persons in the United States.

SENATE

On Passage:

Procedural Actions:

Senate Amendments:

COST AND IMPACT

Cost to the taxpayers: CBO estimates that implementing the unclassified provisions of the bill would cost $3 million over the 2018-2022 period, subject to the availability of appropriated funds.

 

 

Sec. 1924. Unauthorized removal and retention of classified documents                     or material

 

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than [one year] five years, or both.

(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

Pay-as-you-go requirements:  Data not available

Dynamic Scoring:   Data not available

Regulatory and Other Impact: Data not available

Tax Complexity:  Not applicable to this bill.

Earmark Certification:  Data not available

Duplication of programs: H.R. 4478 does not duplicate or reauthorize an established program of the Federal Government known to be duplicative of another Federal program

Direct Rule-Making:      H.R. 4478 does not specifically direct any rule makings within the meaning of 5 U.S.C. 551

Advisory Committee Statement: Data not available

Budget Authority: Data not available

Constitutional Authority:   Assumed.

 

More Bill Information:

MINORITY VIEWS

 

Section 702 of the Foreign Intelligence Surveillance Act is

a critical Intelligence Community (IC) tool. We will continue

to work to reauthorize and reform this authority in a way which

will enhance privacy and transparency, while maintaining

operational effectiveness.

We regret the Majority’s inclusion, in must-pass

legislation to reauthorize Section 702, an unnecessary and

politicized provision which purports to address deficiencies in

the process for “unmasking” U.S. person identity information

contained in intelligence reports.

Of greatest concern is the creation of special review and

congressional notification procedures for requests made to the

IC during a presidential transition. These would be triggered

when the sought information, if “unmasked,” might identify

personnel of a presidential or vice presidential transition

team.

This language is intended to bolster the false claim that,

during the 2016 presidential transition and before, officials

of the last Administration surveilled Trump Tower, and sought

identifying information contained in intelligence reports for

improper or even illegal purposes, including to leak classified

information to journalists.

The Committee has seen no evidence, heard no testimony, and

has no grounds for believing that senior officials of the Obama

Administration–or any Administration–abused the identity

request process. And, although the topics of Section 702 and

“unmasking” frequently have been conflated, the Committee

also has seen no evidence that U.S. person identity information

incidentally collected pursuant to Section 702 has been

improperly “unmasked.” The Chairman’s own inquiry has yielded

no evidence that IC professionals who adjudicate identity

requests acted inappropriately.

Nonetheless, the IC is taking action to further heighten

privacy protection. On the day before Committee markup of the

Section 702 reauthorization, the Director of National

Intelligence pledged to strengthen existing procedures

governing identity requests–including with regard to

presidential transitions–and to seek greater harmonization of

those procedures across the IC. Given this commitment, there is

simply no policy reason to insist on including the presidential

transition language in Section 702’s reauthorization.

During markup, Minority Members expressed different views

about the sorts of additional privacy safeguards that Congress

ought to establish as a condition for Section 702’s

reauthorization. We each believe, however, that legislation so

vital to national security cannot include language obviously

meant to further a partisan agenda.

In the short time that remains before Section 702’s

expiration at the end of this month, we will work to remove the

offending “unmasking” language, and to add privacy and

transparency safeguards without diminishing Section 702’s

proven capability to protect national security.

 

Adam B. Schiff.

James A. Himes.

Terri A. Sewell.

Andre Carson.

Jackie Speier.

Mike Quigley.

Eric Swalwell.

Joaquin Castro.

ADDITIONAL VIEWS

 

Section 702 of the Foreign Intelligence Surveillance Act is

an important national security tool, but a balance that must be

struck between security and civil liberties. The last time we

reviewed and debated these surveillance authorities in 2012, I

voted against reauthorization of 702 authorities because of

concerns over Americans’ most fundamental civil rights.

Since that time, significant numbers of Americans have been

improperly swept up in surveillance activities that the law

says must not target Americans. This improperly obtained

information is retained for years. It has been used in court

against Americans charged with crimes that have nothing to do

with national security, with no warrants and without the

required notifications to the defense. The government

selectively publicizes what it calls Section 702 successes, but

has defied Congress by refusing share information on how many

Americans are impacted by Section 702 failures. The checks and

balances built into the system are insufficient: a rotating

cast of federal oversight judges are expected to grapple with

the highly technical aspects of electronic surveillance,

outmatched by an army of expert government lawyers.

Unfortunately, this bill fails to allay my concerns.

Specifically, it omits two measures I advocated for during

drafting: the appointment of a permanent, expert “special

master” to advise the Foreign Intelligence Surveillance Court

on technical matters; and, an independent assessment by the

Comptroller General of the United States of the government’s

claims to the efficacy of Section 702 authorities.

My concerns are shared widely on both sides of the aisle,

and civil liberties groups have assessed that the so-called

fixes in this bill would be worse than no fixes at all. We must

instead work together to address these problems. This is far

too serious of a matter to ram through a renewal of these

authorities with limited debate, particularly given the

profound implications for all Americans and for American

businesses operating overseas.

I serve in Congress because I love this country, and I am

driven to protect it both from external national security

threats and from internal weakening of our Constitutional

protections. This bill fails to balance those concerns, and so

I must oppose it.

 

Jackie Speier.

 

ADDITIONAL VIEWS

 

Like Section 702 of the Foreign Intelligence Surveillance

Act (FISA) itself, H.R. 4478, the FISA Amendments

Reauthorization Act of 2017, is designed to ensure security. It

seeks to accomplish that goal, in my view, at too great a cost

to privacy. The tradeoff embodied in this bill is not the only,

or even the best, option available. With a little more work,

deliberation and debate, we could reform the Section 702

program–which is necessary for security–in a fashion that

would more effectively safeguard privacy.

The Committee has not sufficiently considered the serious

legal and policy concerns associated with “about collection”

by the NSA, pursuant to Section 702. That form of surveillance

has been troubled by compliance difficulties and inadvertent

collection, and drawn criticism from the Foreign Intelligence

Surveillance Court. Compounding the problem, “about

collection” was not explicitly authorized by the original text

of Section 702 itself. Although the practice has been

discontinued by NSA, issues implicated by it remain very real

and have not been addressed. I am thus uncomfortable with

provisions of H.R. 4478–which contemplate the resumption of

“about collection” in the future. The issue deserves fuller

discussion here in Congress, before we sign off.

Furthermore, H.R. 4478 does not adequately address law

enforcement’s practice of querying the Section 702 database,

through use of an American’s identifying information, without

first obtaining judicial approval. Although courts have

approved such queries, they nevertheless are, in my view,

inconsistent with values we hold dear in the United States.

Though H.R. 4478 contains reforms intended to address law

enforcement uses of Section 702 data, these may not protect

Americans’ privacy interests in an adequate way.

Finally, H.R. 4478 newly authorizes surveillance, under

provisions of FISA other than Section 702, of persons engaged

in international malicious cyber activities against the United

States. The bill’s definition of “malicious cyber activities”

appears to conflict with other legal and policy definitions of

the term. That inconsistency could cause confusion and

conflicts, both at home and abroad. Additionally, the new

language obviously expands the scope of permitted surveillance

under FISA; I have not yet been furnished with adequate

information to conclude that such an expansion is necessary.

For these reasons, I oppose this bill.

 

Denny Heck.

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