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Time-Limited Provisions of the Foreign Intelligence Surveillance Act Reauthorized Through 2023

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President Trump signed the FISA Amendments Reauthorization Act on January 19, 2018, reauthorizing the mass surveillance provisions of the Foreign Intelligence Surveillance Act (FISA) through December 31, 2023. The Act renewed Title VII of FISA and most notably its Section 702, which provides for the surveillance of foreign targets located outside the United States. The six-year reauthorization faced opposition from lawmakers and advocates concerned for Americans’ privacy interests, although Trump “would have preferred a permanent reauthorization of Title VII to protect the safety and security of the Nation.”

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1 Pub. L. No. 115–118, 132 Stat. 19 (2018) (codified at 50 U.S.C. §§ 1881a–e); Donald J. Trump, Statement on FISA Amendments Reauthorization Act of 2017, 2018 Daily Comp. Pres. Doc. 40 (Jan. 19, 2018) [hereinafter Trump Signing Statement].

2 White House Press Release, Statement by the Press Secretary on the FISA Amendments Reauthorization Act of 2017 (Jan. 19, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-fisa-amendments-reauthorization-act-2017 [https://perma.cc/NEB2-D2JM] [hereinafter White House Press Secretary Press Release].

3 Trump Signing Statement, supra note 1.

4 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95–511, 92 Stat. 1783, 1784, 1790.

5 For a discussion of FISA at the time of enacting the USA PATRIOT Act, see Sean D. Murphy, Contemporary Practice in the United States, 96 AJIL 237, 252–53 (2002).

6 Trump Signing Statement, supra note 1; White House Press Secretary Press Release, supra note 2.

7 The FISA Amendments Act: Q&A, Off. Dir. Nat'l Intelligence (Apr. 18, 2017), available at https://www.dni.gov/files/icotr/FISA%20Amendments%20Act%20QA%20for%20Publication.pdf; see also id. at 2 (noting that this provision was important given that “by 2008, technology had changed considerably and many terrorists and other foreign intelligence targets abroad were using communication services based in this country, especially those provided by U.S.-based Internet service providers”).

8 Id.; see also, e.g., Joint Statement from Att'y Gen. Sessions, FBI Dir. Wray, DNI Coats, CIA Dir. Pompeo, and NSA Dir. Rogers on FISA Section 702 Reauthorization (Dec. 21, 2017), at https://www.justice.gov/opa/pr/joint-statement-attorney-general-sessions-fbi-director-wray-dni-coats-cia-director-pompeo-and [https://perma.cc/A3P4-4KEL] (“The Intelligence Community conducts and uses 702 collection in a manner that protects the privacy and civil liberties of individuals.”).

9 Release of the FISC Opinion Approving the 2016 Section 702 Certifications and Other Related Documents, INTEL.gov: Off. Dir. Nat'l Intelligence, at https://www.intelligence.gov/ic-on-the-record-database/results/3-release-of-the-fisc-opinion-approving-the-2016-section-702-certifications-and-other-related-documents [https://perma.cc/D7R9-YWH6].

10 Pub. L. No. 110–261, § 403(b), 122 Stat. 2436, 2474 (2008).

11 Pub. L. No. 112–238, § 2, 126 Stat. 1631, 1631 (2012).

12 50 U.S.C. § 1881a(b)(1)–(3).

13 See Karoun Demirjian, Senate Passes Bill to Extend Key Surveillance Program, Sending It to Trump's Desk, Wash. Post (Jan. 18, 2018), at https://www.washingtonpost.com/powerpost/senate-passes-bill-to-extend-key-surveillance-program-sending-it-to-trumps-desk/2018/01/18/3f8d5036-fc71-11e7-8f66-2df0b94bb98a_story.html?utm_term=.2c66d578624eb (noting that under Section 702, federal law enforcement agents can obtain information about U.S. citizens who have communicated with foreign targets without first obtaining a warrant).

14 Nat'l Sec. Agency Press Release, NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702 (Apr. 28, 2017), at https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml [https://perma.cc/2VJU-SN85].

15 Charlie Savage, Eileen Sullivan & Nicholas Fandos, House Extends Surveillance Law, Rejecting New Privacy Safeguards, N.Y. Times (Jan. 11, 2018), at https://www.nytimes.com/2018/01/11/us/politics/fisa-surveillance-congress-trump.html?action=click&contentCollection=Politics&module=RelatedCoverage&region=EndOfArticle&pgtype=article.

16 See Charlie Savage, Surveillance and Privacy Debate Reaches Pivotal Moment in Congress, N.Y. Times (Jan. 10, 2018), at https://www.nytimes.com/2018/01/10/us/politics/nsa-surveillance-privacy-section-702-amendment.html (describing the efforts of the bipartisan coalition behind the USA Rights Act); Karoun Demirjian & Josh Dawsey, Congress Advances Bill to Renew NSA Surveillance Program After Trump Briefly Upstages Key Vote, Wash. Post (Jan. 11, 2018), at https://www.washingtonpost.com/politics/trump-backtracks-after-appearing-to-contradict-his-administrations-support-of-fisa/2018/01/11/5d7f7088-f6d1-11e7-91af-31ac729add94_story.html?utm_term=.ebc337a9ec81 (noting how privacy advocates “rallied around an alternative measures from Rep. Justin Amash,” the USA Rights Act, “that would have required law enforcement agencies to obtain warrants before being able to sift through the NSA's record database”).

17 White House Press Release, Statement from Press Secretary Sarah Sanders (Jan. 10, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-18 [https://perma.cc/8H88-BFJQ].

18 See Demirjian & Dawsey, supra note 16 (describing the House vote); Savage, Sullivan & Fandos, supra note 15 (same).

19 See Demirjian, supra note 13 (describing the Senate vote).

20 50 U.S.C. § 1881a(f)(2)(A; see also Demirjian, supra note 13 (noting that the legislation that passed requires a court order to search data that would be used in criminal cases, but “no such restriction in cases involving counterterrorism, counterintelligence, and counterespionage”).

21 50 U.S.C. § 1881a(f)(2)(E).

22 50 U.S.C. § 1881e(a)(2)(A)(ii)(II).

23 Compare Donald J. Trump (@realDonaldTrump), Twitter (Jan. 11, 2018, 7:33 AM), at https://twitter.com/realDonaldTrump/status/951431836030459905 (“‘House votes on controversial FISA ACT today.’ This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?”), with Donald J. Trump (@realDonaldTrump), Twitter (Jan. 11, 2018, 9:14 AM), at https://twitter.com/realDonaldTrump/status/951457382651056128 (“With that being said, I have personally directed the fix to the unmasking process since taking office and today's vote is about foreign surveillance of foreign bad guys on foreign land.”).

24 Trump Signing Statement, supra note 1.

25 Id.

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