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Friday, April 19, 2013

Reauthorization of the FISA Amendments Act

Edward C. Liu
Legislative Attorney

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.

Date of Report: April 8, 2013
Number of Pages: 13
Order Number: R42725
Price: $29.95

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