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Wednesday, February 16, 2011

Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire February 28, 2011


Edward C. Liu
Legislative Attorney

Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on February 28, 2011. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks.

Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include “any tangible thing.” It also lowered the standard required before a court order may be issued to compel their production.

The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the “lone wolf” provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization.

Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date.

In the 112
th Congress, several bills have been introduced that would extend all three provisions for varying amounts of time. H.R. 67 would postpone the sunset of all three provisions until February 29, 2012. H.R. 514 would extend the provisions through December 8, 2011. On February 8, 2011, H.R. 514 was considered by the House under suspension of the rules, but did not garner the two-thirds majority needed to pass.

In the Senate, S. 149 and S. 289 would extend the three expiring provisions until December 13, 2013, and would also extend Title VII of FISA, which governs the electronic surveillance of persons outside the United States, until the same date. S. 193 and S. 290 would extend the three provisions until December 31, 2013, and would make substantive amendments to the authorities governing § 215 orders, certain other FISA provisions, and national security letters. S. 291 would make all three provisions permanent.



Date of Report: February 10, 2011
Number of Pages: 19
Order Number: R40138
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