Download Locations

• U.S. Department of State

Summary

The current legislative and oversight activity with respect to electronic surveillance under Foreign Intelligence Surveillance Act (FISA) has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI) for the intelligence community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast-paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate -- the Fourth and First Amendments. This report briefly examines these issues and sets them in context. The 110th Congress has considered several bills that, if enacted, would amend certain FISA provisions, among them H.R. 3733, which passed the House on November 15, 2007; S. 2248 (as reported out of the Senate Select Committee on Intelligence); and S. 2248 (as reported out of the Senate Judiciary Committee with an amendment in the nature of a substitute). On December 17, 2007, cloture was invoked on a motion to proceed with Senate consideration of S. 2248. After some debate in the closing hours before the holiday break, floor activities on S. 2248 resumed on January 23 and 24, 2008. A modified version of the Senate Judiciary Committee's amendment in the nature of a substitute to S. 2248 was tabled. Senator Reid sought unanimous consent for consideration of the House-passed bill, H.R. 3773, but Senator McConnell objected. Senator Rockefeller, for himself and Senator Bond, proposed an amendment in the nature of a substitute to S. 2248 (S.Amdt. 3911). On January 29, 2008, both the House and the Senate passed H.R. 5104, a 15day extension to the sunset for the Protect America Act, to allow further time to consider, pass, and go to conference on proposed FISA legislation, while ensuring that the intelligence community would have the authority it needed in the intervening period. Pursuant to an agreement and order of January 31, 2008, S.Amdt. 3909, S.Amdt. 3932, and S.Amdt. 3960, each as modified; and S.Amdt. 3945 were agreed to, while other amendments were scheduled for floor debate. S.Amdt. 3930 fell short of the requisite 60 votes, and was withdrawn on February 6, 2008. On February 7, 2008, S.Amdt. 3941 was agreed to, while S.Amdt. 3913 and S.Amdt. 3915 failed to pass. Still pending are S.Amdt. 3938, as modified; S.Amdt. 3911, S.Amdt. 3907, S.Amdt. 3927, S.Amdt. 3919, S.Amdt. 3920, and S.Amdt. 3910. Floor debate is anticipated to continue next week, with additional votes expected on February 12, 2008. For a side-by-side comparison of H.R. 3773 and the two reported versions of S. 2248, see CRS Report RL34277, The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee, by Elizabeth B. Bazan (updated February 8, 2008).

Related Legislation:
• H.R.3733
• S.2248
• H.R.3773
• H.R.5104

Related Reports:
• RL34279

XML