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Thursday, January 10, 2013

Reauthorization of the FISA Amendments Act

Edward C. Liu
Legislative Attorney

Reauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (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 being debated 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, before the merits of that question could be reached, the government argued that the plaintiffs lacked standing to challenge Title VII. That question is currently pending review in the United States Supreme Court.

Unless reauthorizing legislation is enacted, Title VII of FISA will be repealed effective December 31, 2012. Transition procedures apply to orders that are in effect on December 31, 2012, under any of the three provisions of Title VII. The transition procedures authorize the continued effect of these orders until their normal expiration dates. At least two bills in the 112
th Congress would extend Title VII of FISA beyond its current expiration date of December 31, 2012. H.R. 5949 was passed by the House of Representatives on September 12, 2012, and would extend Title VII until December 31, 2017. In the Senate, S. 3276, as reported by the Senate Select Committee on Intelligence, would extend Title VII until June 1, 2017. The Senate Judiciary Committee has also reported a separate version of S. 3276 that would extend Title VII until June 1, 2015, synchronizing its reauthorization cycle with that of other temporary provisions of FISA. The Senate Judiciary Committee’s version of the bill would additionally expand the responsibilities of agency heads and Department of Justice and intelligence community inspectors general to review the use of Title VII.

Date of Report:
December 20, 2012
Number of Pages:
Order Number: R42
Price: $29.95

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