Schiff, Flake Introduce "NSA Oversight Act"

WASHINGTON, D.C. – Today, on the first day of the 110th Congress, Reps. Adam Schiff (D-CA) and Jeff Flake (R-AZ) offered a bipartisan measure that will modernize the Foreign Intelligence Surveillance Act (FISA) to respond to changes in technology and new threats, but that will retain court supervision over domestic electronic surveillance.  The “NSA Oversight Act” directly addresses the President's domestic surveillance program. 

“Electronic surveillance of those seeking to harm our country must be targeted and aggressive. It must also be constitutional and respect the privacy of law-abiding Americans,” Schiff said.  “When Congress passed FISA and Title III, it intended to provide the sole authority for surveillance of Americans on American soil.  Those acts require court approval for such surveillance, and the FISA court has proved capable of acting expeditiously.” 

“Updates and improvements in FISA need to be codified in law to ensure that they survive the present administration,” said Flake.

The Schiff-Flake legislation responds to the issues that have been raised by officials at the National Security Agency (NSA) and the Department of Justice last year in testimony to Congress. The bipartisan measure on NSA oversight:

  1. Extends Emergency Electronic Surveillance Authority to Prevent Attacks - extends from 72 hours to 7 days the amount of time allowed to initiate surveillance in an urgent situation before going to the FISA court for a warrant. This authority can be used to thwart imminent attacks. 
  2. Enhances Electronic Surveillance Authority after an Attack - provides that in addition to a “declaration of war by the Congress,” an “authorization for the use of military force (AUFM)” can also trigger the FISA “wartime exception” for purposes of allowing 15 days of warrantless surveillance.
  3. Clarifies that Foreign-to-Foreign Communications are Outside FISA - makes clear that foreign-to-foreign communications are outside of FISA and don’t require a court order.
  4. Permits Continued Surveillance Where Targets Travel Internationally - provides that a FISA order for electronic surveillance shall continue to be in effect for the authorized period even if the person leaves the U.S.
  5. Streamlines FISA Application Process - removes redundant requirements in the application process and streamlines some of the current detailed requirements in order to permit information to be drafted in summary form.
  6. Increases Speed and Agility of FISA Process – authorizes the FISA court, DOJ, FBI, and NSA to hire more staff for the preparation and consideration of FISA applications and orders. Authorizes the appointment of additional FISA judges to provide for the prompt and timely consideration of FISA applications and requires a 24-hour turnaround for emergency applications. 
  7. Reiterates Exclusivity of FISA and Clarifies Military Force Statute – reiterates that FISA is the exclusive means by which domestic electronic surveillance for foreign intelligence purposes may be conducted, unless Congress amends the law or passes additional laws regarding electronic surveillance. Makes clear that the AUMF does not constitute an exception to that rule.
  8. Requires Congressional Oversight of TSP and Other Programs in Existence - requires a report to Intel on the Terrorist Surveillance Program (TSP) and any program involving electronic surveillance of U.S. persons in the U.S. for foreign intelligence purposes that is outside FISA. Provides access of this report to members of the Judiciary Committee. 

Reps. Schiff and Flake previously teamed up on similar legislation last year.  They offered several measures dealing with domestic surveillance including one that would have cut funding to any program that conducted domestic surveillance outside of FISA. However, the amendment to the Department of Defense Appropriations bill was defeated in a close vote, with 23 Republicans supporting the measure.  Reps. Schiff and Flake also worked together in 2005 to secure passage of an amendment to the Patriot Act to provide additional safeguards for library and bookstore records.