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Update on the FISA Amendments Act Reauthorization

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Wednesday, October 31, 2012 at 6:23 PM

The Supreme Court is not the only branch of government focused on FISA. As many Lawfare readers will recall, Congress is currently considering reauthorizing Title VII of FISA, which is scheduled to expire at the end of the year pursuant to a sunset provision in the 2008 amendments. This post summarizes the current status of the reauthorization.

Section 702, the substantive provision at issue in Clapper v. Amnesty International, permits the Attorney General and the DNI jointly to authorize targeted collection of foreign intelligence from non-U.S. persons reasonably believed to be outside the United States. Section 702 allows such collection even if a U.S. person inside the United States is a party to the communication, subject to minimization procedures and other safeguards. By contrast, sections 703 and 704 generally require a court order for targeting U.S. persons reasonably believed to be outside the United States. For further information about the reauthorization, see this detailed report prepared by Edward C. Liu of the Congressional Research Service.

In September, the House of Representatives voted to reauthorize Title VII for five years without changes. The Senate is currently considering its version of the bill, although the Washington Post reports that a final vote is unlikely until after the election. In June, the Select Committee on Intelligence reported the reauthorization without amendment. In September, however, the Judiciary Committee reported an amended version of the measure. The Judiciary Committee version would extend Title VII for only two-and-a-half years, not five years as the administration requested. This change would align the sunset date for Title VII with the sunset dates for other FISA provisions. Additionally, the Judiciary Committee version would require the Intelligence Community Inspector General to conduct a study on the implementation of the FISA Amendments Act, with a focus on the privacy of U.S. persons. Steven Aftergood of Secrecy News predicts that the Senate will approve the Judiciary Committee version because Senator Dianne Feinstein, the Chair of the Intelligence Committee, supports that draft.

Further complicating passage is Senator Ron Wyden’s hold on the bill, which he placed in June. In a press release announcing the hold, Senator Wyden identified two concerns about the reauthorization. First, he criticized the DNI for declining to answer to his questions about the number of Americans whose communications had been reviewed pursuant to the FISA Amendments Act. Second, Senator Wyden expressed concern that the government could engage in “back-door searches” of Americans’ communications collected under section 702. However, Senator Wyden has indicated that he may be amenable to a short-term extension if necessary to reach agreement.

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