Congress Considers Reform to Queries of FISA Information as Reauthorization Deadline Approaches

Legal Sidebari

Congress Considers Reform to Queries of
FISA Information as Reauthorization
Deadline Approaches
Updated January 8, 2018
UPDATE: The House Rules Committee has announced a meeting to consider H.R. 4478 on Tuesday,
January 9, 2018 (as an amendment in the nature of a substitute to S. 139).
The text of the original post follows below.
Title VII of the Foreign Intelligence Surveillance Act (FISA) is currently scheduled to sunset on January
19, 2018. Of the expiring provisions, Section 702, which authorizes “programmatic” surveillance of non-
U.S. persons while they are outside of the United States, has received the greatest amount of attention,
possibly because Section 702 provides the Attorney General (AG) and Director of National Intelligence
(DNI) more leeway to authorize surveillance than other FISA provisions.
Generally, before the government may conduct electronic surveillance under FISA, the Foreign
Intelligence Surveillance Court (FISC) must issue an order finding, inter alia, that probable cause exists
to believe that the target of the proposed surveillance is a foreign power or an agent of a foreign power.
Pursuant to Section 702, however, the AG, in consultation with the DNI, develop targeting and
minimization procedures to identify targets and acquire communications, which they submit to the FISC
for approval. The AG and DNI also certify to the FISC that surveillance of a target will comply with
Section 702, including the proposed targeting and minimization procedures. While Section 702 requires
the FISC to issue orders on procedures and certifications within thirty days of their submission, Section
702 also permits the AG and DNI to determine that exigent circumstances necessitate their authorizing
surveillance of non-U.S. persons located outside of the United States prior to the FISC approving the
targeting and minimization procedures and certification. In addition, once the FISC approves the targeting
and minimization procedures, elements of the U.S. intelligence community, such as the National Security
Agency (NSA), may use those procedures to acquire the communications of non-U.S. persons who are
reasonably believed to be outside of the United States without first acquiring a FISC order approving
surveillance of each specific target for the duration of the order. Consequently, under Section 702, the
FISC does not have to find that surveillance of a specific identifiable target is based on probable cause
prior to the U.S. government acquiring that target’s communications.
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Although Section 702 is scheduled to expire in January, transition procedures would allow existing FISC
orders to continue in effect until they would otherwise have expired. Consequently, because the FISC may
authorize surveillance for up to one year under Section 702, an order issued after January 19, 2017, could
continue to have effect until its one-year anniversary date in 2018 or into January 2019, notwithstanding
Title VII’s January 19, 2018 sunset.
In anticipation of the impending sunset, congressional committees have held mark-ups of three
reauthorization proposals:
 S. 2010 the FISA Amendments Reauthorization Act of 2017, reported by the Senate
Select Committee on Intelligence (SSCI);
 H.R. 3989, the USA Liberty Act of 2017, ordered to be reported by the House Judiciary
Committee; and
 H.R. 4478, the FISA Amendments Reauthorization Act of 2017, reported by the House
Permanent Select Committee on Intelligence (HPSCI).
All three bills would extend Title VII for varying lengths of time. The SSCI bill would reauthorize Title
VII for roughly eight years until December 31, 2025. The House Judiciary bill would extend the same
provisions for approximately six years until September 30, 2023. Lastly, the HPSCI bill would postpone
the sunset for about four years until December 31, 2021.
In addition to reauthorizing Title VII, the three bills substantively change Title VII by restricting searches
of information previously collected under Section 702.While varying, the bills address, to some degree,
commentator concerns over law enforcement queries of Section 702 information using specific references
to U.S. persons to detect whether evidence of a crime may exist.
Under current law, FISC-approved minimization procedures govern the retention and dissemination of
information acquired pursuant to FISA Section 702. Because agencies have a variety of minimization
procedures, agency ability to query Section 702 information varies. For example, minimization
procedures declassified in 2017 appear to allow the NSA and the Central Intelligence Agency to query
information collected under FISA Section 702 using U.S. person identifiers (e.g., an email address or
telephone number) only when such queries are reasonably likely to return foreign intelligence
information. In contrast, Federal Bureau of Investigation (FBI) minimization procedures appear to allow
queries of Section 702-acquired information that could show evidence of a crime.
The three bills would modify this practice in several ways:
 S. 2010 would require records of all queries using a known U.S. person identifier to be
kept by the relevant intelligence agency. Additionally, the FBI Director would be required
to notify the FISC, within one business day, that the FBI had acquired information
concerning a known U.S. person through a query of information acquired under Section
702. If the FISC subsequently determined that this query violated the Fourth Amendment,
the FBI would not be able to use the information in any court proceeding.
 H.R. 3989, in contrast, would generally require the government to apply for a court order
before using a query to access the contents of communications acquired under Section
702. The FISC would issue the order only if probable cause existed to believe that the
contents of the communication included evidence of certain crimes for which traditional
domestic surveillance would be available under the Electronic Communications Privacy
Act. A lower standard would apply to queries seeking non-content information such as
dialing, routing, addressing, or signaling information. For this type of information or
metadata, a supervisor would be required to approve the query, but a FISC order
authorizing the query would not generally be required.

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
 H.R. 4478 would give the government the option to obtain a FISC order prior to accessing
the contents of Section 702-acquired communications, but would not require it to do so.
However, if a FISC order was not obtained prior to the government accessing the contents
of a communication, those contents would generally be inadmissible in any subsequent
criminal prosecution. UPDATE: The House Rules Committee will be considering a
modified version of H.R. 4478.
In addition to placing new restrictions on queries of Section 702 information, all three bills deal with a
wide variety of other topics, such as “about collection,” procedures for revealing U.S. persons’ identities
in information collected under FISA, and reforms to the Privacy and Civil Liberties Oversight Board
(PCLOB).


Author Information

Edward C. Liu

Legislative Attorney




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