House Judiciary approves FISA Amendments Act reauthorization

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Renewal of intelligence community authorization to intercept electronic communications without a warrant--provided the interceptions are targeted at suspected foreign state or terrorist agents located outside the United States--took a step forward June 19 with the House Judiciary Committee voting to approve a 5-year extension of the Foreign Intelligence Surveillance Amendments Act of 2008.

In a 23-11 vote (.pdf) that fell mostly along party lines--all Republicans for, most Democrats against--the committee marked up legislation (H.R. 5949) that would move the expiration date of the act from the end of this year to Dec. 31, 2017.

The Senate Intelligence Committee already voted on June 7 on a bill (S. 3276) that would similarly extend the act, in their case until June 1, 2017.

The act and its renewal is a source of controversy, particularly over the extent to which it permits the National Security Agency to sweep up the communications of innocent citizens. Because the act allows the intelligence community to collect communications essentially at their initiative without the need to gain individualized authorization from the Foreign Intelligence Surveillance Court--unless the target is a United States person reasonably believed to be outside the country--privacy advocates worry about the extent to which the NSA intercepts telecommunications traffic to and from abroad.

The act directs the intelligence community to take steps to minimize the scope of interceptions, and prohibits reverse targeting--i.e., using the act to intercept the communications of a foreigner located abroad in order to actually read the communications of someone located in the United States.

The act's provisions are good enough for its supporters, such as Sen. Diane Feinstein (D-Calif.), chairwoman of the Senate Intelligence Committee. In a report (.pdf) accompanying the Senate renewal bill, she wrote that the government implements the act's "surveillance authorities in a responsible manner with relatively few incidents of non-compliance."

"Congress recognized at the time the FISA Amendments Act was enacted that it is simply not possible to collect intelligence on the communications of a party of interest without also collecting information about the people with whom, and about whom, that party communicates, including in some cases non-targeted U.S. persons," she added.

But it's precisely that fact that's upsetting to critics, who note that the intelligence community itself says (.pdf) it does not know the number of people located in the United States whose  communications may have been intercepted and reviewed under authority of the act.

The act creates a "a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens," said Democratic Sens. Ron Wyden (Ore.) and Mark Udall (Colo.) in minority reviews appended to the Senate report.

Attempts by Democratic House members to amend the act during the June 19 markup session were defeated, including a proposed amendment by Rep. Sheila Jackson Lee (D-Texas) that would require the intelligence community to estimate the extent to which it intercepts Americans' communications.

For more:
- go to the House Judiciary Committee webpage on its mark up of H.R. 5949
- go to the THOMAS page for S. 3276

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