Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire May 27, 2011

Edward C. Liu
Legislative Attorney

Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on May 27, 2011. The three sunsetting amendments expanded the scope of federal intelligencegathering 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 112th Congress, several bills have been introduced that would extend all three provisions beyond May 27, 2011. In the House of Representatives, H.R. 67 would postpone the sunset of all three provisions until February 29, 2012. H.R. 1800, which was favorably reported out of the House Judiciary Committee on May 12, 2011, would extend the roving wiretap and section 215 authorities until December 31, 2017, while making the “lone wolf” provision permanent.

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, as favorably reported by the Senate Judiciary Committee, would similarly extend the three expiring provisions and Title VII of FISA until December 31, 2013. S. 193 would also 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: May 13, 2011
Number of Pages: 20
Order Number: R40138
Price: $29.95

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