On Wednesday, September 12, 2012, the House is scheduled to consider H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012, under a rule.  H.R. 5949 was introduced on June 15, 2012, by Rep. Lamar Smith (R-TX) and referred to the House Committee on the Judiciary and the House Intelligence Permanent Select Committee.  The Committee on the Judiciary held a mark-up of H.R. 5949, and reported the bill by a vote of 23 to 11.

H.R. 5949 would extend the authority of the federal government to conduct surveillance pursuant to the FISA Amendments Act of 2008 until December 31, 2017.  The FISA Amendments Act of 2008 provided the Director of National Intelligence (DNI) and the Attorney General (AG) the authority to acquire foreign intelligence information from non-U.S. citizens outside the U.S. This authority is scheduled to expire on December 31, 2012, under current law.

The following is information provided per the House Committee on the Judiciary House Report 112-645,

“In 2006 and 2007, then-Director of National Intelligence Admiral Mike McConnell explained to Congress that due to recent FISA court decisions, the government was forced to devote substantial resources to obtaining court approvals—based on a showing of probable cause—to conduct surveillance against terrorists located overseas in some circumstances.  This is contrary to what Congress intended when it enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 and had come about due to changes in telecommunication technology.  Admiral McConnell stated that the Intelligence Community was not collecting approximately two-thirds of the foreign intelligence information that it collected prior to legal interpretations that required the government to obtain individualized FISA court orders for overseas surveillance.

“On July 10, 2008, President Bush signed into law the FISA Amendments Act of 2008, which passed with a bipartisan majority of Congress and broad support from the intelligence community.  The Act allows intelligence professionals to more quickly and effectively monitor terrorist communications, while protecting the civil liberties of Americans.  Among other things, the law accomplishes the following:

• “Ensures that the intelligence community has the tools it needs to determine who terrorists are communicating with, what they are saying and what they may be planning.
• “Provides critical authorities that allow the intelligence community to acquire foreign intelligence information by targeting foreign persons reasonably believed to be outside the United States.
• “Preserves and provides new civil liberties protections for Americans.
• “Requires court orders to target Americans for foreign intelligence surveillance, no matter where they are, and requires court review of the procedures used to protect information about Americans.

“Specifically, the new law authorizes the targeting of non-U.S. persons overseas to acquire foreign intelligence information, subject to specific targeting and minimization procedures that are reviewed by the FISA Court.

“The Act permits the Attorney General and Director of National Intelligence to obtain an annual certification from the Foreign Intelligence Surveillance Court (FISC) to target foreign persons reasonably believed to be located outside the U.S. to acquire foreign intelligence information.  Under exigent circumstances, the Attorney General and Director of National Intelligence may immediately authorize such targeting based upon a determination that without immediate implementation of an authorization, intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order.

“The Act strengthens protections for U.S. citizens by requiring the government to obtain an order from the FISC to target them outside the United States to acquire foreign intelligence information.  Prior to 2008, targeting of U.S. persons outside the U.S. was governed by Executive Order 12333, which allowed the Attorney General to certify the targeting of U.S. persons overseas.

“The Act expands congressional oversight with a semi-annual report to Congress from the Administration on certifications or orders obtained under the Act, compliance reviews, and incidents of noncompliance. The Act amends an existing reporting requirement that requires the Attorney General to submit to Congress a copy of any FISC order, opinion, or decision, and the accompanying pleadings, briefs, and other memoranda of law when the court's decision includes ‘significant construction or interpretation of any provision’ of FISA.  This expands the amount of background and supporting material that the Committee will receive in connection with a significant decision by the FISC.  Prior to enactment of the FISA Amendments Act in 2008, only ‘decisions and opinions’ containing significant construction or interpretation of FISA were required to be submitted to Congress.

“With the FAA set to expire at the end of this year, the Administration has strongly urged Congress to reauthorize the legislation.  In a recent letter to Congress, both the Attorney General and the DNI explain that the FAA ‘has proven to be an extremely valuable authority in protecting our nation from terrorism and other national security threats.’  They represent that the oversight of its implementation has been comprehensive, citing the findings of their semi-annual assessments that agencies have ‘continued to implement the procedures and follow the guidelines in a manner that reflects a focused and concerted effort by agency personnel to comply with the [FAA] requirements’ and that agency personnel ‘are appropriately focused on directing their efforts at non-United States persons reasonably believed to be located outside the United States.’  And importantly, they conclude that the reauthorization of the FAA ‘is the top legislative priority of the Intelligence Community.’”

According to the Congressional Budget Office (CBO), CBO estimates that implementing H.R. 5949 would have no significant cost to the federal government.  According to CBO, the bill would impose both private-sector and intergovernmental mandates by extending an existing mandate that would limit civil actions and require providers of communication services to provide information.  There is little information about the prevalence of electronic surveillance in those cases or the scope or size of potential awards from such cases.  Consequently, CBO cannot determine whether the costs of those mandates would exceed the annual threshold established by the Unfunded Mandates Reform Act.