Week ending January 12, 2018
S 139 – FISA Amendments Reauthorization Act of 2017
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.
(Full text of S. 139 as HR 4478congress.gov)
Sponsor: Rep. Nunes, Devin [R-CA-22] (Introduced 11/29/2017)
Status: Passed House / Passed Senate / Conference
VOTES and FLOOR ACTION
On Passage: n passage Passed by the Yeas and Nays: 256 – 164 (Roll no. 16)
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.
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.
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
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
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.
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.
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.
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