H.R. 7888. - 'Reforming Intelligence and Securing America Act' RISAA passes House
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| Reforming Intelligence and Securing America Act passes House |
Update
Passed Senate, under the order of April 19, 2024, having achieved 60 votes in the affirmative, without amendment by Yea-Nay Vote. 60 - 34. Record Vote Number: 150.On April 20, 2024 RISSA Became Public Law No: 118-49 after being signed by President.
'Reforming Intelligence and Securing America Act ' RISAA
April 12, 2024—The House voted to reauthorize a key U.S. spy program considered essential to national security. In a 273 to 147 vote, lawmakers renewed Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire on April 19, through 2026. H.R. 7888 added amendments such as modifying the definition of electronic communication service provider and prohibits warrantless searches of U.S. person communications in the FISA 702 database, with exceptions for imminent threats to life or bodily harm, consent searches, or known cybersecurity threat signatures.
Section 702 allows the U.S. government to collect electronic communications of non-Americans located outside the country without a warrant. It came under scrutiny among some lawmakers on both sides of the aisle and civil liberties groups because it sometimes results in the collection of data on Americans who are in contact with those surveilled individuals.
An amendment was offered to add a warrant requirement to see data from Americans, but it narrowly failed in a 212 to 212 vote. Section 702 was due to expire at the end of last year, but Congress allowed a short-term extension to April 19, without giving it a full-blown reauthorization.
Key Take Aways of United States v. Mohammed
Constitutional Law - Proceedings concerning disclosure
FISA's ex parte and in camera procedures for reviewing FISA material, on a defendant's request for disclosure of the FISA material, do not run afoul of constitutional due process requirements. U.S. fifth Amendment; Foreign Intelligence Surveillance Act of 1978 § 106, 50 U.S.C.A. § 1806(f).
Criminal Law
When considering a motion to suppress evidence obtained through FISA collection, a court must review the Government's applications, the Foreign Intelligence Surveillance Court's (FISC) orders, and any documentation describing the execution of the collection. Foreign Intelligence Surveillance Act of 1978 §§ 106, 305, 50 U.S.C.A. §§ 1806(e), 1825(f)(1).
Section 702 allows the U.S. government to collect electronic communications of non-Americans located outside the country without a warrant. It came under scrutiny among some lawmakers on both sides of the aisle and civil liberties groups because it sometimes results in the collection of data on Americans who are in contact with those surveilled individuals.
An amendment was offered to add a warrant requirement to see data from Americans, but it narrowly failed in a 212 to 212 vote. Section 702 was due to expire at the end of last year, but Congress allowed a short-term extension to April 19, without giving it a full-blown reauthorization.
Cases of Note
United States v. Mohammad, 339 F. Supp. 3d 724 (N.D. Ohio 2018)
Defendants charged with conspiracy to provide and conceal material support to terrorists, providing material support to terrorists, conspiracy to commit bank fraud, and conspiracy to obstruct justice moved for disclosure of Foreign Intelligence and Surveillance Act (FISA) material and the suppression of evidence obtained or derived from electronic surveillance and physical searches conducted under FISA Titles I and III.
Constitutional Law - Proceedings concerning disclosure
FISA's ex parte and in camera procedures for reviewing FISA material, on a defendant's request for disclosure of the FISA material, do not run afoul of constitutional due process requirements. U.S. fifth Amendment; Foreign Intelligence Surveillance Act of 1978 § 106, 50 U.S.C.A. § 1806(f).
Criminal Law
When considering a motion to suppress evidence obtained through FISA collection, a court must review the Government's applications, the Foreign Intelligence Surveillance Court's (FISC) orders, and any documentation describing the execution of the collection. Foreign Intelligence Surveillance Act of 1978 §§ 106, 305, 50 U.S.C.A. §§ 1806(e), 1825(f)(1).
Search, Seizure, and Arrest
Defendants charged with conspiracy to provide and conceal material support to terrorists were not entitled to suppression of FISA Title I and Title III materials based on government's failure to adhere to FISA's statutory requirements. Because (FISC) orders contained necessary elements and properly found existence of probable cause, and the surveillance and searches were conducted in compliance with the FISC's orders. U.S. fourth amendment; 18 U.S.C.A. § 2339A; Foreign Intelligence Surveillance Act of 1978 § 101, 50 U.S.C.A. § 1801.
United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015), aff'd, 20 F.4th 558 (10th Cir. 2021)
The defendant was charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. Defendant moved to suppress warrantless surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act (FISA) Amendments Act. Foreign Intelligence Surveillance Act of 1978 § 702, 50 U.S.C.A. § 1881a.
Defendants charged with conspiracy to provide and conceal material support to terrorists were not entitled to suppression of FISA Title I and Title III materials based on government's failure to adhere to FISA's statutory requirements. Because (FISC) orders contained necessary elements and properly found existence of probable cause, and the surveillance and searches were conducted in compliance with the FISC's orders. U.S. fourth amendment; 18 U.S.C.A. § 2339A; Foreign Intelligence Surveillance Act of 1978 § 101, 50 U.S.C.A. § 1801.
War and National Emergency
FISA provisions allowing for surveillance when a significant purpose of the collection is the acquisition of foreign intelligence does not violate Fourth Amendment. U.S. Const. Amend. 4; Foreign Intelligence Surveillance Act of 1978 §§ 104, 303, 50 U.S.C.A. §§ 1804(a)(6)(B), 1823(a)(6)(B).
FISA provisions allowing for surveillance when a significant purpose of the collection is the acquisition of foreign intelligence does not violate Fourth Amendment. U.S. Const. Amend. 4; Foreign Intelligence Surveillance Act of 1978 §§ 104, 303, 50 U.S.C.A. §§ 1804(a)(6)(B), 1823(a)(6)(B).
United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015), aff'd, 20 F.4th 558 (10th Cir. 2021)
The defendant was charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. Defendant moved to suppress warrantless surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act (FISA) Amendments Act. Foreign Intelligence Surveillance Act of 1978 § 702, 50 U.S.C.A. § 1881a.
The District Court For The District Of Colorado Kane found that:
Under that law, the National Security Agency can order email services like Google to turn over copies of all messages in the accounts of any foreign user and network operators like AT&T to intercept and furnish copies of any phone calls, texts and internet communications to or from a foreign target.
Section 702 collection plays a major role in the gathering of foreign intelligence and counterterrorism information, according to national security officials.
- FAA was not unconstitutional on its face in violation of the Fourth Amendment, and
- Acquisition and use of defendant's communications did not violate the Fourth Amendment.
History of 'Foreign Intelligence Surveillance Act' FISA
The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter on 25 October 1978. It requires federal law enforcement and intelligence agencies to obtain authorization for gathering "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. The law established the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants.
Although FISA was initially limited to government use of electronic surveillance, subsequent amendments have broadened the law to regulate other intelligence-gathering methods, including physical searches, pen register and trap and trace (PR/TT) devices, and commanding the production of certain types of business records.
What is Section 702?
It is a law that allows the government to collect — on domestic soil and without a warrant — the communications of targeted foreigners abroad, including when those people are interacting with Americans.Under that law, the National Security Agency can order email services like Google to turn over copies of all messages in the accounts of any foreign user and network operators like AT&T to intercept and furnish copies of any phone calls, texts and internet communications to or from a foreign target.
Section 702 collection plays a major role in the gathering of foreign intelligence and counterterrorism information, according to national security officials.
History of Section 702
In 2008, Congress enacted Section 702 of the Foreign Intelligence Surveillance Act (FISA), a critical intelligence collection authority that enables the Intelligence Community (IC) to collect, analyze, and appropriately share foreign intelligence information about national security threats. Section 702 authorizes targeted intelligence collection of specific types of foreign intelligence information—such as information concerning international terrorism or the acquisition of weapons of mass destruction—identified by the Attorney General and the Director of National Intelligence (DNI).
Section 702 solely permits the targeting of non-United States persons who are reasonably believed to be located outside the United States. United States persons and anyone in the United States may not be targeted under Section 702. Section 702 also prohibits “reverse targeting”—the IC may not target a non-U.S. person located outside the U.S. if the purpose of the collection is to collect information about a United States person or anyone located in the United States.
Section 702 is not a bulk collection program; it is a substantial and important targeted intelligence collection program. Every Section 702 targeting decision is individualized and documented, approved pursuant to a multi-step process embodied in specific targeting procedures, and reviewed by an independent oversight team.
All Section 702 targets must be non-United States persons reasonably believed to be located outside the United States, Congress has always recognized that such targets may send an email or have a phone call with a United States person. For this reason, Section 702 requires specific procedures to minimize the acquisition, retention, and sharing of any information concerning United States persons. “Minimize,” however, does not always mean “eliminate” – if, for example, a foreign terrorist indicated that a United States person was a key member of an ongoing terrorist plot, this information would be appropriately shared to allow the FBI to take further investigative steps. Congress also amended Section 702 to require specific procedures to ensure the querying of any Section 702-acquired information is consistent with the Fourth Amendment.
The Section 702 program is subject to extensive oversight. The Attorney General must approve the targeting, minimization, and querying procedures, each of which are annually reviewed by the Foreign Intelligence Surveillance Court (FISC) for consistency with the FISA statute and the Fourth Amendment. Each of the IC elements involved in the Section 702 program has developed internal oversight processes and programs to ensure compliance with these procedures. The Department of Justice and the Office of the Director of National Intelligence conduct extensive, regular, and independent reviews of Section 702 activities. Any identified compliance errors are remedied and reported to the FISC and Congress.
Section 702 solely permits the targeting of non-United States persons who are reasonably believed to be located outside the United States. United States persons and anyone in the United States may not be targeted under Section 702. Section 702 also prohibits “reverse targeting”—the IC may not target a non-U.S. person located outside the U.S. if the purpose of the collection is to collect information about a United States person or anyone located in the United States.
Section 702 is not a bulk collection program; it is a substantial and important targeted intelligence collection program. Every Section 702 targeting decision is individualized and documented, approved pursuant to a multi-step process embodied in specific targeting procedures, and reviewed by an independent oversight team.
All Section 702 targets must be non-United States persons reasonably believed to be located outside the United States, Congress has always recognized that such targets may send an email or have a phone call with a United States person. For this reason, Section 702 requires specific procedures to minimize the acquisition, retention, and sharing of any information concerning United States persons. “Minimize,” however, does not always mean “eliminate” – if, for example, a foreign terrorist indicated that a United States person was a key member of an ongoing terrorist plot, this information would be appropriately shared to allow the FBI to take further investigative steps. Congress also amended Section 702 to require specific procedures to ensure the querying of any Section 702-acquired information is consistent with the Fourth Amendment.
The Section 702 program is subject to extensive oversight. The Attorney General must approve the targeting, minimization, and querying procedures, each of which are annually reviewed by the Foreign Intelligence Surveillance Court (FISC) for consistency with the FISA statute and the Fourth Amendment. Each of the IC elements involved in the Section 702 program has developed internal oversight processes and programs to ensure compliance with these procedures. The Department of Justice and the Office of the Director of National Intelligence conduct extensive, regular, and independent reviews of Section 702 activities. Any identified compliance errors are remedied and reported to the FISC and Congress.
Related Laws
50 USC —WAR AND NATIONAL DEFENSE—Chapter 36: FOREIGN INTELLIGENCE SURVEILLANCE
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