CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Congress Considers Reform to Queries of
FISA Information as Reauthorization
Deadline Approaches
Edward C. Liu
Legislative Attorney
January 8, 2018
UPDATE: The House Rules Committee has announced a meeting to consider H.R. 4478 on Tuesday,
January 9, 2018 (as an amendment in the nature of a substitute to S. 139).
The text of the original post follows below.
Title VII of the Foreign Intelligence Surveillance Act (FISA) is currently scheduled to sunset on January
19, 2018. Of the expiring provisions, Section 702, which authorizes “programmatic” surveillance of non-
U.S. persons while they are outside of the United States, has received the greatest amount of attention,
possibly because Section 702 provides the Attorney General (AG) and Director of National Intelligence
(DNI) more leeway to authorize surveillance than other FISA provisions.
Generally, before the AG and DNI may authorize electronic surveillance under Title VII, the Foreign
Intelligence Surveillance Court (FISC) must issue an order finding, inter alia, that probable cause exists
to believe that the target of the proposed surveillance is a foreign power or an agent of a foreign power.
Pursuant to Section 702, however, the AG, in consultation with the DNI, develop targeting and
minimization procedures to identify targets and acquire communications, which they submit to the FISC
for approval. The AG and DNI also certify to the FISC that surveillance of a target will comply with
Section 702, including the proposed targeting and minimization procedures. While Section 702 requires
the FISC to issue orders on procedures and certifications within thirty days of their submission, Section
702 also permits the AG and DNI to determine that exigent circumstances necessitate their authorizing
surveillance of non-U.S. persons located outside of the United States prior to the FISC approving the
targeting and minimization procedures and certification. In addition, once the FISC approves the targeting
and minimization procedures, elements of the U.S. intelligence community, such as the National Security
Agency (NSA), may use those procedures to acquire the communications of non-U.S. persons who are
Congressional Research Service
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