Reforming & Reauthorizing Surveillance Under FISA Section 702 Through 2023 (S. 139)

What is S. 139?

(Updated October 5, 2018)

This bill was enacted on January 19, 2018

(Updated 1/8/2018): This bill was co-opted through the amendment process to serve as the legislative vehicle for a six-year reauthorization of surveillance activities under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Originally the bill required the FBI to develop standards for using Rapid DNA tests to examine criminal evidence and reduce the backlog of untested DNA evidence. The summary of the bill in its current form can be found below.

This bill would extend the Foreign Intelligence Surveillance Act (FISA) — including Section 702 — for four years, replacing the current sunset date of December 31, 2017 with a new sunset date of December 31, 2023. It would also temporarily codify into law the NSA’s ban on collection of “abouts” communication regarding a target until the government develops new procedures and briefs congressional judiciary and intelligence committees about them. Additionally, the bill would overhaul the “unmasking” process to safeguard the identities of American citizens.

The ban on “abouts” collection would continue until the Foreign Intelligence Surveillance Court (FISC) approves new procedures and congressional intelligence and judiciary committees have 30 days to review it. When the FISC reviews the first Section 702 certification that reconstitutes “abouts” collection an amici curiae (impartial legal advisor) would be appointed to ensure the procedures are adhered to.

The federal government would be prohibited from using information gathered under Section 702 in a criminal case against a U.S. person unless:

• The FBI obtained an order from the FISC to view Section 702 communications after querying its data for criminal purposes;

• The Attorney General approved the use of Section 702 collection in a criminal case against a U.S. person and the crime is national security-related or a specified severe crime, like murder or kidnapping.

Specific procedures for querying FISA Section 702 data would be established and reviewed annually by the FISC. So-called “minimization procedures”, which are used to protect the personal information of Americans whose communications are collected, would undergo a declassification review and be published after the review is complete.

The penalty for unauthorized removal and retention of classified documents or material would be increased from one year to five years imprisonment.

Argument in favor

This bill will reauthorize a critical tool used by intelligence agencies to thwart terror attacks along with implementing reforms aimed at protecting the personal information of law-abiding Americans.

Argument opposed

While this bill’s surveillance reforms aimed at protecting Americans’ personal information are appreciated, they don’t go far enough. If FISA Section 702 is reauthorized, it should be for less than six years.

Impact

Americans whose information is gathered by intelligence agencies under FISA Section 702; intelligence agencies; the FISC; and Congress.

Cost of S. 139

A CBO cost estimate is unavailable.

Additional Info

Of Note: The House Intelligence Committee cited the use of Section 702 surveillance in thwarting a planned bombing of the New York City subway system in 2009, in addition to tracking and removing from the battlefield ISIS’s second-in-command -- Hajji Iman.

The White House endorsed this legislation in a statement of administration policy, saying that while the administration "would prefer a clean and permanent extension", a six-year extension "will keep America safe from those who wish to do us harm."

Media:

• House Intelligence Committee Summary
• House Intelligence Committee Section-by-Section
• Statement of Administration Policy (In Favor)
  
• Bloomberg
• Hot Air
• Washington Examiner