[Senate Report 114-277]
[From the U.S. Government Publishing Office]
Calendar No. 504
114th Congress } { Report
SENATE
2d Session } { 114-277
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2017
_______
June 15, 2016.--Ordered to be printed
_______
Mr. Burr, from the Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 3017]
The Select Committee on Intelligence, having considered an
original bill (S. 3017) to authorize appropriations for fiscal
year 2017 for intelligence and intelligence-related activities
of the United States Government, the Community Management
Account, and the Central Intelligence Agency Retirement and
Disability System, and for other purposes, reports favorably
thereon and recommends that the bill do pass.
Classified Annex to the Committee Report
On February 9, 2016, acting pursuant to Section 364 of the
Intelligence Authorization Act for Fiscal Year 2010 (Public Law
111 259), the Director of National Intelligence (DNI) publicly
disclosed that the President's aggregate request for the
National Intelligence Program for Fiscal Year 2017 is $53.5
billion. Other than for limited unclassified appropriations,
primarily the Intelligence Community Management Account, the
classified nature of United States intelligence activities
precludes any further disclosure, including by the Committee,
of the details of its budgetary recommendations. Accordingly,
the Committee has prepared a classified annex to this report
that contains a classified Schedule of Authorizations. The
classified Schedule of Authorizations is incorporated by
reference in the Intelligence Authorization Act (the ``Act'')
and has the legal status of public law. The classified annex is
made available to the Committees on Appropriations of the
Senate and the House of Representatives and to the President.
It is also available for review by any Member of the Senate
subject to the provisions of Senate Resolution 400 of the 94th
Congress (1976).
Section-by-Section Analysis and Explanation
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2017 that is being reported by the Committee.
TITLE I--INTELLIGENCE ACTIVITIES
Section 101. Authorization of appropriations
Section 101 lists the United States Government departments,
agencies, and other elements for which the Act authorizes
appropriations for intelligence and intelligence-related
activities for Fiscal Year 2017.
Section 102. Classified Schedule of Authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities for Fiscal Year 2017 are
contained in the classified Schedule of Authorizations and that
the classified Schedule of Authorizations shall be made
available to the Committees on Appropriations of the Senate and
House of Representatives and to the President.
Section 103. Intelligence Community Management Account
Section 103 authorizes appropriations in the amount of
$568,596,000 for the Intelligence Community Management Account
(ICMA) of the Office of the Director of National Intelligence
for the elements within the ICMA for Fiscal Year 2017.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$514,000,000 for Fiscal Year 2017 for the Central Intelligence
Agency Retirement and Disability Fund.
TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS
Section 301. Restriction on conduct of intelligence activities
Section 301 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 302. Increase in employee compensation and benefits authorized
by law
Section 302 provides that funds authorized to be
appropriated by the Act for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in compensation or benefits authorized by law.
Section 303. Support to nonprofit organizations assisting intelligence
community employees
Section 303 permits the Director of National Intelligence
(DNI) to engage in fundraising in an official capacity for the
benefit of nonprofit organizations that provide support to
surviving family members of a deceased employee of an element
of the Intelligence Community or otherwise provide support for
the welfare, education, or recreation of Intelligence Community
employees, former employees, or their family members. Section
303 further requires that the DNI and the Director of the
Central Intelligence Agency notify the congressional
intelligence committees at least thirty days before they engage
in such fundraising (or at the time they decide to participate,
whichever is earlier).
Section 304. Promotion of science, technology, engineering, and math
education in the intelligence community
Section 304 requires the Director of National Intelligence
to submit a five-year investment strategy for outreach and
recruiting efforts in the fields of science, technology,
engineering, and mathematics (STEM), to include cybersecurity
and computer literacy. Section 304 further requires elements of
the Intelligence Community to submit STEM investment plans
supporting this strategy for each of the fiscal years 2018
through 2022, along with the materials justifying the budget
request of each element for these STEM recruiting and outreach
activities.
Section 305. Retention of employees of the intelligence community who
have science, technology, engineering, or math expertise
Section 305 authorizes a new payscale to permit salary
increases for employees in the Intelligence Community with STEM
backgrounds. Section 305 also requires notifications to
individual employees if a position is removed from this new
payscale. Section 305 further requires the head of each
Intelligence Community element to submit to the congressional
intelligence committees a report on the new rates of pay and
number of positions authorized under this payscale.
Section 306. Annual review and report on interactions between the
intelligence community and entertainment industry
Section 306 requires the Director of National Intelligence
to provide an annual report to the congressional intelligence
committees detailing interactions between the Intelligence
Community and the entertainment industry. Section 306 also
requires the report to include a description of the nature,
duration, costs, and results of each engagement, as well as a
certification that each engagement did not result in a
disclosure of classified information and whether any
information was declassified for the disclosure. Section 306
further requires that before an Intelligence Community element
may engage with the entertainment industry, the head of that
element must approve the proposed engagement and notify the
congressional intelligence committees at least thirty days in
advance of why the engagement would further the Intelligence
Community element's interests.
These engagements, some of which have been described in
partially declassified inspector general reports, cost taxpayer
dollars, raise potential ethics concerns, increase the risk of
disclosure of classified information, and consume the time and
attention of Intelligence Community personnel responsible for
United States national security. Neither the production of
entertainment nor the self-promotion of Intelligence Community
entities are legitimate purposes for these engagements.
Section 307. Protections for independent inspectors general of elements
of the intelligence community
Section 307 requires the Inspector General for each
Intelligence Community element to implement a policy that
prohibits Office of Inspector General senior employees from
being involved in matters that affect the interest of an
organization within an element for which the employee worked
for at least two years, and that prohibits Office of Inspector
General non-senior employees from being involved in matters
that affect the interest of an organization within an agency
for which the employee worked for at least one year. Section
307 further prohibits the Director of National Intelligence
from requiring an employee of an Office of Inspector General to
rotate to a position in the element for which such office
conducts oversight.
Section 308. Congressional oversight of policy directives and guidance
Section 308 requires the Director of National Intelligence
to submit to the congressional intelligence committees
notifications and copies of any classified or unclassified
Presidential Policy Directive, Presidential Policy Guidance, or
other similar policy document issued by the President which
involves the Intelligence Community, within the specified
timeframes. Section 308 further requires the Director to notify
the congressional intelligence committees of guidance to
implement such policies.
Section 309. Notification of memorandums of understanding
Section 309 requires the head of each element of the
Intelligence Community to submit to the congressional
intelligence committees copies of each memorandum of
understanding or other agreement regarding intelligence
activities entered into with another entity of the federal
government within specified timeframes.
Section 310. Intelligence community assistance for nationally
significant critical infrastructure
Section 310 requires the Director of National Intelligence
and the Secretary of Homeland Security to establish a program
to provide assistance and support to certain critical
infrastructure entities, on a voluntary basis, for the purpose
of reducing the likelihood of catastrophic harm resulting from
a cyber attack.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
SUBTITLE A--OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Section 401. Designation of the Director of the National
Counterintelligence and Security Center
Section 401 renames the National Counterintelligence
Executive as the ``National Counterintelligence and Security
Center,'' with conforming amendments.
SUBTITLE B--OTHER ELEMENTS
Section 411. Enhanced death benefits for employees of the Central
Intelligence Agency
Section 411 authorizes the Director of the Central
Intelligence Agency to pay death benefits substantially similar
to those authorized for members of the Foreign Service, and
requires the Director to submit implementing regulations to the
congressional intelligence committees.
Section 412. Pay and retirement authorities of the Inspector General of
the Central Intelligence Agency
Section 412 amends the Central Intelligence Agency Act of
1949 to authorize the Inspector General (IG) of the Central
Intelligence Agency (CIA) to consider certain positions as law
enforcement officers for purposes of calculating retirement
eligibility and entitlements under chapters 83 and 84 of title
5, United States Code, if such officer or employee is appointed
to a position with responsibility for investigating suspected
offenses against the criminal laws of the United States.
Section 412 may not be construed to confer on the IG of the
CIA, or any other officer or employee of the CIA, any police or
law enforcement or internal security functions or authorities.
Section 413. Prohibition on the Director of the National Security
Agency serving contemporaneously as a commander of a combatant
command
Section 413 amends the National Security Act of 1959, 50
U.S.C. Sec. 3602(a), to prohibit the Director of the National
Security Agency from concurrently serving as the commander of a
unified combatant command within the Department of Defense, as
defined in 10 U.S.C. Sec. 161(c).
Section 414. Enhancing the technical workforce for the Federal Bureau
of Investigation
Section 414 requires the Federal Bureau of Investigation
(FBI) to produce a comprehensive strategic workforce report to
demonstrate progress in expanding initiatives to effectively
integrate information technology expertise in the investigative
process. Section 414 further requires the report to include:
(1) progress on training, recruitment, and retention of cyber-
related personnel; (2) an assessment of whether FBI officers
with these skill sets are fully integrated in the FBI's
workforce; (3) the FBI's collaboration with the private sector
on cyber issues; and (4) an assessment of the utility of
reinstituting and leveraging the FBI Director's Advisory Board.
TITLE V--MATTERS RELATING TO FOREIGN COUNTRIES
Section 501. Committee to counter active measures by the
Russian Federation to exert covert influence over peoples and
governments.
Section 501 requires the President to establish an
interagency committee to counter active measures by the Russian
Federation that constitute Russian actions to exert covert
influence over peoples and governments.
Section 502. Limitation on travel of accredited diplomats of the
Russian Federation in the United States from their diplomatic
post
Section 502 requires the Director of the Federal Bureau of
Investigation to certify that Russian diplomats have followed
proper travel notification procedures before the Secretary of
State can permit Russian diplomats' travel in excess of 50
miles outside of their diplomatic posts.
Section 503. Study and report on enhanced intelligence and information
sharing with Open Skies Treaty member states
Section 503 requires the Director of National Intelligence
to conduct a study to determine the feasibility of creating an
intelligence sharing arrangement and database among parties to
the Open Skies Treaty with higher frequency, quality, and
efficiency. Section 503 also requires the Director to issue a
report as to how the Russian Federation is using Open Skies
Treaty collection, a list of the covered parties that have been
updated with this information, and an analysis of the benefits
the United States derives by being a party to the treaty as
well as the potential implications for covered state parties if
the United States should withdraw from the treaty.
Section 504. Reviews on cooperation between the intelligence community
and foreign intelligence entities
Section 504 requires the Director of National Intelligence
to review the number, scope, purpose, benefits, and risks of
the relationships between the Intelligence Community and
foreign intelligence entities and to report to the
congressional intelligence committees on specified findings.
Section 504 further requires the Director of the Central
Intelligence Agency to review its coordination of the
relationships between the elements of the Intelligence
Community and foreign intelligence entities and report to the
congressional intelligence committees on specified findings.
TITLE VI--PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
Section 601. Information on activities of the Privacy and Civil
Liberties Oversight Board
Section 601 requires the Privacy and Civil Liberties
Oversight Board to keep Congress and relevant Intelligence
Community elements fully and currently informed of its
activities.
Section 602. Appointment of staff of the Privacy and Civil Liberties
Oversight Board
Section 602 amends the Intelligence Reform and Terrorism
Prevention Act of 2004, 42 U.S.C. Sec. 2000ee(j), to require
that, in the absence of a chairman, the members of the Privacy
and Civil Liberties Oversight Board (the ``Board'') may, by
unanimous vote, exercise the chairman's authority to appoint
and fix the compensation of Board personnel. The Committee
appreciates the professionalism of the Board's staff. However,
the Committee is concerned that the staff of the Board may lack
an appropriate balance in expertise and that this imbalance may
impede the efforts of the Board to execute its statutory
mandate to consider the appropriate balance between
counterterrorism efforts of the United States and the privacy
and civil liberties as guaranteed by the United States
Constitution. Therefore, the Committee strongly recommends that
the Board make every effort to recruit, hire or appoint, and
retain staff, employees, detailees, experts, and consultants
who have relevant expertise and experience in both efforts to
protect the United States from terrorism and with privacy and
civil liberties as guaranteed by the United States
Constitution.
Section 603. Protection of the privacy and civil liberties of United
States persons
Section 603 ensures that the Privacy and Civil Liberties
Oversight Board (the ``Board'') is focused on the privacy and
civil liberties of United States persons when conducting its
analysis and review of United States counterterrorism efforts.
The Committee notes that the August 2004 Executive Order
13353 provided the foundation for the Board by creating an
entity within the Department of Justice that would ``protect
the legal rights of all Americans, including freedoms, civil
liberties, and information privacy guaranteed by Federal law,
as the President may direct.''
Similarly, the Committee recognizes that the Intelligence
Reform and Terrorism and Prevention Act of 2004 (IRTPA), 42
U.S.C. Sec. 2000ee(c)(1) and (2) states that the Board ``shall
(1) analyze and review actions the executive branch takes to
protect the Nation from terrorism, ensuring that the need for
such actions is balanced with the need to protect privacy and
civil liberties; and (2) ensure that liberty concerns are
appropriately considered in the development and implementation
of laws, regulations, and policies related to efforts to
protect the Nation against terrorism.''
That same language is repeated in the report to accompany
IRTPA, H. Rept. 108-796, 108th Cong. 2d Sess. (Dec. 7, 2004)
(the Board ``is charged with ensuring that privacy and civil
liberties concerns are appropriately considered in the
implementation of laws, regulations, and policies of the
government related to efforts to protect the Nation against
terrorism'').
Notably, Senator Collins, the original sponsor of IRTPA,
emphasized this intent on the Senate Floor, stating that the
transparency resulting from the Board's activities ``helps to
give confidence to the American people that the protection of
their civil liberties and privacy is being addressed as we take
actions to further protect our Nation from terrorism.'' Cong.
Rec. S11974 (daily ed. Dec. 8, 2004) (statement of Senator
Collins).
The Committee believes it is important for the Board to
consider the privacy and civil liberties of U.S. Persons first
and foremost when conducting its analysis and review of United
States counterterrorism efforts.
TITLE VII--MATTERS RELATING TO UNITED STATES NAVAL STATION, GUANTANAMO
BAY, CUBA
Section 701. Declassification review of information on Guantanamo
detainees and mitigation measures taken to monitor the
individuals and prevent future attacks
Section 701 requires the Director of National Intelligence
to complete a declassification review of information on the
past terrorist activities of detainees transferred or released
from Guantanamo, make resulting declassified information
publicly available, and submit to the congressional
intelligence committees a report setting forth the results of
the declassification review and, if any information covered by
the review was not declassified, a justification for the
determination not to declassify such information. Section 701
also sets the schedule for such reviews and requires that the
reviews and reports include mitigation measures being taken by
the country where the individual has been transferred or
released to monitor and prevent the individual from carrying
out future terrorist activities. Section 701 further defines
past terrorist activities to include terrorist organization
affiliations, terrorist training, role in terrorist attacks,
responsibility for the death of United States citizens or
members of the Armed Forces, any admission thereof, and a
description of the intelligence supporting the past terrorist
activities, including corroboration, confidence level, and any
dissent or reassessment by the Intelligence Community.
Section 702. Limitation on transfer of Guantanamo detainees to foreign
countries
Section 702 prohibits an individual detained at Guantanamo
from being transferred or released to a foreign country until
after the date that the Director of National Intelligence
certifies that an intelligence driven threat monitoring system
has been established and is sufficient to mitigate the risk of
such individuals reengaging in terrorism or posing a threat to
United States persons or national security, and that the
Intelligence Community has the capability to monitor all such
individuals by appropriate means to provide assessments on
their activities as required.
TITLE VIII--REPORTS AND OTHER MATTERS
Section 801. Submission of intelligence related information in certain
reports by the Secretary of Defense
Section 801 prohibits the Secretary of Defense from using
waiver authority under 10 U.S.C. Sec. 119(e)(1) to omit
reporting intelligence or intelligence-related activities in
the annual report requirements.
Section 802. Cyber Center for Education and Innovation Home of the
National Cryptologic Museum
Section 802 amends 10 U.S.C. Sec. 449 to enable the
establishment of a Cyber Center for Education and Innovation
Home of the National Cryptologic Museum.
Section 803. Counterintelligence access to telephone toll
and transactional records.
Section 803 makes a conforming edit to 18 U.S.C. Sec. 2709,
to clarify that the government is permitted to obtain non-
content electronic communications transactional records
(commonly known as ``ECTRs'') from wire or electronic
communication service providers in national security
investigations upon proper certification of the Director of the
Federal Bureau of Investigation (FBI) or the Director's
designee.
In 1986, Congress enacted Section 2709 to allow the FBI to
request telephone subscriber information, toll billing records,
and electronic communications transactional records in national
security investigations and imposed a duty on wire and
electronic communication service providers to comply with such
requests. This duty has remained unchanged since Section 2709's
enactment.
Unfortunately, when Congress amended the required
certification language in Section 2709(b) in 1993, it
inadvertently omitted electronic communications transactional
records among the list of records that required a certification
from the FBI. Since Section 2709(a) still imposed a duty on
providers to comply with requests for electronic communications
transactional records, the FBI continued to issue requests for
these transactional records and the providers continued to
comply.
Beginning in 2009, certain major electronic communications
service providers began refusing to comply with FBI requests
for electronic communications transactional records under
Section 2709. The service providers justified their non-
compliance on the absence of a specific mention of ``electronic
communications transactional records'' in the required
certification provision of Section 2709(b). The non-compliance
of certain companies made it much more difficult for the FBI to
obtain these electronic communications transactional records.
Instead of being able to rely upon a properly-certified request
for electronic communications transactional records under
Section 2709--which could be issued by the FBI in a matter of
days--the FBI has been required to seek the very same
electronic communications transactional records from non-
compliant providers through the use of a business records court
order under the Foreign Intelligence Surveillance Act, a
process that often takes over a month. Notably, a 2014
Department of Justice Inspector General Report states that,
after certain providers began to refuse to comply with FBI
requests for electronic communications transactional records, a
request under Section 2709 that had taken ``a matter of hours
if necessary, now takes about 30-40 days to accomplish[.]''
United States Dep't of Justice, Office of Inspector General, A
Review of the Federal Bureau of Investigation's Use of National
Security Letters: Assessment of Progress in Implementing
Recommendations and Examination of Use in 2007 through 2009, at
73 (August 2014).
In 2010, the Department of Justice began seeking a
legislative clarification of Section 2709 to address the
problem caused by the non-compliant providers. Director Comey
testified at a Senate Judiciary Committee hearing in December
2015 that a change to the electronic communications
transactional records provision
would be enormously helpful. . . . It would save us a
tremendous amount of work hours if we could fix that,
without any compromise to anyone's civil liberties or
civil rights. Everybody who has stared at this has
said, ``that's actually a mistake. We should fix
that.''
Additionally, in response to a question posed at this
Committee's 2016 Worldwide Threats hearing, Director Comey
stated that the FBI needs
[a clarification to the electronic communications
transactional records provision] very much and it's
actually quite an ordinary fix that is necessary
because what I believe is a typo in the 1993 statute
that has led to some companies interpreting it in a way
I don't believe Congress ever intended. And so it is
ordinary, but it affects our work in a very, very big
and practical way.
Director Comey also confirmed that it was a ``top
legislative priority'' for the FBI. Thus, certain providers'
noncompliance is substantially impairing the FBI's ability to
conduct national security investigations. Because of this
resulting operational impairment, the Administration initially
requested the legislative clarification in 2010 for the Fiscal
Year 2011 authorization bill. Similarly, on May 24, 2016, the
Department of Justice reiterated in a formal written proposal
to the Committee the Administration's request for the
legislative clarification to Section 2709. The current
Administration has now twice requested that Congress clarify
the technical error in Section 2709. Ultimately, the Committee
approved an amendment to Section 2709(b), which also clarifies
that ``electronic communications transactional records'' do not
contain content.
Section 804. Oversight of national security systems
Section 804 amends 44 U.S.C. Sec. 3557 to codify and
strengthen existing roles and responsibilities with regard to
the oversight of national security systems.
Section 805. Joint facilities certification
Section 805 requires that before an element of the
Intelligence Community purchases, leases, or constructs a new
facility that is 20,000 square feet or larger, the head of that
element must first certify that all prospective joint
facilities have been considered, that it is unable to identify
a joint facility that meets its operational requirements, and
it must list the reasons for not participating in joint
facilities in that instance.
Section 806. Improvement of leadership and management of space
activities
Section 806 requires the Director of National Intelligence
(DNI), in collaboration with the Secretary of Defense and the
Chairman of the Joint Chiefs of Staff, to issue an update to
the strategy for a comprehensive review of the United States
national security overhead satellite architecture required in
the Intelligence Authorization Act for Fiscal Year 2016.
Section 806 requires the DNI, in coordination with the
Secretary of Defense, to submit a plan to harmonize the
Intelligence Community's governance, operations, analysis, and
collection activities related to space and counterspace under
the oversight of a single official, to be appointed by the DNI,
in consultation with the Secretary of Defense. Section 806 also
requires the DNI to submit a workforce plan for space and
counterspace operations, policy, acquisition, and analysis.
Section 806 further requires the Director of the National
Reconnaissance Office and the Commander of U.S. Strategic
Command to submit a concept of operations and requirements
documents for the Joint Interagency Combined Space Operations
Center.
Section 807. Advances in life sciences and biotechnology
The Committee recognizes the rapid advancements in the life
sciences and biotechnology and firmly believes that biology in
the twenty-first century will transform the world as physics
did in the twentieth century.
The potential risks associated with these advancements are
less clear. The posture of the Intelligence Community to follow
and predict this rapidly changing landscape is a matter of
concern recognizing the global diffusion and dual-use nature of
life sciences and biotechnology along with the dispersed
responsibility of the life sciences related issues across
several National Intelligence Officer portfolios.
Section 807 requires the Director of National Intelligence
to brief the congressional intelligence committees on a
proposed plan and actions to monitor advances in life sciences
and biotechnology to be carried out by the Director. The
Director's plan should include, first, a description of the
Intelligence Community's approach to leverage the organic life
science and biotechnology expertise both within and outside the
Intelligence Community; second, an assessment of the current
life sciences and biotechnology portfolio, the risks of genetic
editing technologies, and the implications of these advances on
future biodefense requirements; and, third, an analysis of
organizational requirements and responsibilities to include
potentially creating new positions. Section 807 further
requires the Director to submit a written report and provide a
briefing to the congressional intelligence committees on the
role of the Intelligence Community in the event of a biological
attack, including a technical capabilities assessment to
address potential unknown pathogens.
Section 808. Reports on declassification proposals
Section 808 requires the Director of National Intelligence
to provide the congressional intelligence committees with a
report and briefing on the Intelligence Community's progress in
producing four feasibility studies undertaken in the course of
the Intelligence Community's fundamental classification
guidance review, as required under Executive Order 13526.
Section 808 further requires the Director to provide the
congressional intelligence committees with a briefing, interim
report, and final report on the final feasibility studies
produced by elements of the Intelligence Community and an
implementation plan for each initiative.
Section 809. Improvement in government classification and
declassification
Section 809 requires Executive Branch agencies and
departments to review their classification guidance documents
every five years. Section 809 further requires the Director of
National Intelligence to provide an annual written notification
to the congressional intelligence committees certifying the
creation, validation, or substantial modification (to include
termination) of existing and proposed controlled access
programs, and the compartments and subcompartments within each.
Section 810. Report on implementation of research and development
recommendations
Section 810 requires the Director of National Intelligence
to conduct and provide to the congressional intelligence
committees a current assessment of the Intelligence Community's
implementation of the recommendations issued in 2013 by the
National Commission for the Review of the Research and
Development (R&D) Programs of the Intelligence Community.
Section 811. Report on Intelligence Community Research and Development
Corps
Section 811 requires the Director of National Intelligence
to develop and brief the congressional intelligence committees
on a plan, with milestones and benchmarks, to implement a R&D
Reserve Corps, as recommended in 2013 by the bipartisan
National Commission for the Review of the R&D Programs of the
Intelligence Community, including any funding and potential
changes to existing authorities that may be needed to allow for
the Corps' implementation.
Section 812. Report on information relating to academic programs,
scholarships, fellowships, and internships sponsored,
administered, or used by the intelligence community
Section 812 requires the Director of National Intelligence
to submit to congressional intelligence committees a report on
information that the Intelligence Community collects on certain
academic programs, scholarships, and internships sponsored,
administered, or used by the Intelligence Community.
Committee Comments
Commercial Geospatial Intelligence Strategy
The Committee applauds the National Geospatial-Intelligence
Agency (NGA) for issuing its October 2015 Commercial Geospatial
Intelligence (GEOINT) Strategy, which states a goal of
fostering a ``more diverse, resilient, agile, and responsive
GEOINT program that provides seamless user access to the best
mix of commercial GEOINT . . . to fulfill National System for
Geospatial-Intelligence (NSG) and Allied System for Geospatial-
Intelligence (ASG) mission needs.'' The Committee also finds
merit in the NGA's ``GEOINT Pathfinder'' project, which seeks
to maximize the use of unclassified and commercially available
data sources that can be easily and rapidly shared with a
variety of military, United States and allied government, and
non-government customers, and supports the project's
continuation and expansion.
The Committee commends the NGA for pursuing new methods of
intelligence collection and analysis to inform, complement, and
add to its support of warfighter requirements by looking to
emerging commercial technology providers, including small
satellite companies, which hold the promise of rapid
technological innovation and potentially significant future
cost savings to the U.S. taxpayer. The Committee further
encourages the Director of the NGA to ensure sufficient funding
is available to acquire new, unclassified sources, including
commercial satellite imagery providing unprecedented global
persistence, as well as products and services that provide
information and context about change relevant to geospatial
intelligence. The Committee also encourages the NGA to pursue
new business models, including commercial acquisition
practices, to enable the NGA's access to data, products, and
services in ways consistent with best commercial practices.
The Committee fully supports the NGA's course of action in
partnering with the commercial GEOINT industry to meet future
warfighter intelligence requirements, while recognizing the
need to take appropriate steps to protect national security,
and encourages the Director of the NGA and the Under Secretary
of Defense for Intelligence to keep the Committee informed of
their progress in implementing this strategy. In building
future year budgets, the Committee strongly encourages the
Department to ensure continued funding is provided for
implementation through at least Fiscal Year 2021.
Space launch facilities
The Committee continues to believe it is critical to
preserve a variety of launch range capabilities to support
national security space missions. Spaceports or launch and
range complexes may provide capabilities to reach mid-to-low or
polar-to-high inclination orbits. The Committee believes an
important component of this effort may be state-owned and
operated spaceports that are commercially licensed by the
Federal Aviation Administration, which leverage non-federal
public and private investments to bolster U.S. launch
capabilities. Additionally, the Committee believes that these
facilities may be able to provide additional flexibility and
resilience to the Nation's launch infrastructure, especially as
the nation considers concepts such as the reconstitution of
satellites to address the growing foreign counterspace threat.
The Committee notes recent testimony by the Chief of Staff of
the U.S. Air Force, General Mark Welsh, who stated,
As we look at this space enterprise and how we do it
differently in the future, as we look more at
disaggregation, microsats, cube sats, small sats,
things that don't have to go from a large launch
complex all the time, I think proliferating launch
complexes is probably going to be a natural outshoot of
this. I think it's commercially viable, it may be a way
for companies to get into the launch business who could
not afford to get into it or don't see a future in it
and for large national security space launches, but I
think this has got to be part of the strategy that this
whole national team puts together as we look to the
future.
Therefore, the Committee encourages the Intelligence
Community, in partnership with the U.S. Air Force, to consider
the role and contribution of spaceports or launch and range
complexes to our national security space launch capacity, and
directs the Office of the Director of National Intelligence, in
consultation with the Department of Defense and the U.S. Air
Force, to brief the Committee on their plans to utilize such
facilities.
National reconnaissance office workforce optimization strategy
The Committee has had longstanding interest in, and support
for, a permanent government cadre to provide the National
Reconnaissance Office (NRO) with a stable, expert acquisition
workforce. The Committee applauds the substantial progress that
the NRO has made in the past year in this regard. The Committee
has parallel interests in providing the IC with flexibility to
manage a multi-sector workforce and in continuing the reduction
in the reliance on contractors.
Therefore, the Committee directs the NRO to conduct a
workforce review to optimize the mix between government
civilians and contractors and report to the Committee with a
strategy within 90 days of enactment of this Act.
Office of the Inspector General, Central Intelligence Agency
The previous Inspector General of the CIA departed from the
position on January 31, 2015. The President has not yet
nominated a candidate for the Senate's consideration. The
Committee believes it is critical that the Office of the
Inspector General (OIG) be headed by a Senate-confirmed officer
fully able to exercise the authorities and independence
provided the position in statute.
Committee Action
On May 24, 2016, a quorum being present, the Committee met
to consider the bill and amendments. The Committee took the
following actions:
Votes on amendments to committee bill, this report and the classified
annex
By unanimous consent, the Committee made the Chairman and
Vice Chairman's bill, together with the classified annex, the
base text for purposes of amendment.
By voice vote, the Committee adopted en bloc seven
amendments to the classified annex sponsored by: (1) Chairman
Burr and Vice Chairman Feinstein; (2) Senator Rubio; (3)
Senator Rubio and Senator Lankford; (4) Senator Warner; (5)
Senator Warner and Senator Blunt; (6) Senator King, Senator
Lankford, and Senator Rubio; and (7) Senator Cotton and Senator
Rubio.
By voice vote, the Committee adopted en bloc the following
seven amendments to the bill: (1) an amendment by Chairman Burr
and Vice Chairman Feinstein to enhance the Federal Bureau of
Investigation's workforce; (2) an amendment by Chairman Burr,
Vice Chairman Feinstein, Senator Warner, and Senator Cotton
that permits the Director of National Intelligence to support
nonprofit organizations assisting Intelligence Community
employees and their families; (3) an amendment by Vice Chairman
Feinstein to require notifications of engagements of the
Intelligence Community with the entertainment industry; (4) an
amendment by Vice Chairman Feinstein and Senator Hirono to
improve government classification and declassification; (5) an
amendment by Senator Rubio to limit the transfers of detainees
to certain countries; (6) an amendment by Senator Warner,
Senator Mikulski, and Senator Hirono to require reporting on
Intelligence Community academic programs; and (7) an amendment
by Senator Collins, Senator Coats, Senator Mikulski, Senator
Heinrich, Senator Hirono, Senator Risch, and Senator Warner to
require Intelligence Community assistance for nationally
significant critical infrastructure.
By a vote of 3 ayes to 12 noes, the Committee rejected an
amendment by Senator Wyden, Senator Heinrich, and Senator
Hirono to strike Section 603 of the bill. The votes in person
or by proxy were as follows: Chairman Burr--no; Senator Risch--
no; Senator Coats--no; Senator Rubio--no; Senator Collins--no;
Senator Blunt--no; Senator Lankford--no; Senator Cotton--no;
Vice Chairman Feinstein--no; Senator Wyden--aye; Senator
Mikulski--no; Senator Warner--no; Senator Heinrich--aye;
Senator King--no; Senator Hirono--aye.
By voice vote, the Committee adopted an amendment by
Senator Rubio to the classified annex, as modified by a second
degree amendment by Vice Chairman Feinstein.
By a vote of 12 ayes to 3 noes, the Committee adopted an
amendment by Senator Collins to provide the Inspector General
of the Central Intelligence Agency with certain pay and
retirement authorities. The votes in person or by proxy were as
follows: Chairman Burr--no; Senator Risch--no; Senator Coats--
aye; Senator Rubio--aye; Senator Collins--aye; Senator Blunt--
aye; Senator Lankford--no; Senator Cotton--aye; Vice Chairman
Feinstein--aye; Senator Wyden--aye; Senator Mikulski--aye;
Senator Warner--aye; Senator Heinrich--aye; Senator King--aye;
Senator Hirono--aye.
By a vote of 12 ayes to 3 noes, the Committee adopted an
amendment by Senator Cotton, as modified by a second degree
amendment by Vice Chairman Feinstein, to clarify that the
Government may obtain electronic communication transactional
records from information service providers, as well as
telecommunications providers. The votes in person or by proxy
were as follows: Chairman Burr--aye; Senator Risch--aye;
Senator Coats--aye; Senator Rubio--aye; Senator Collins--aye;
Senator Blunt--aye; Senator Lankford--aye; Senator Cotton--aye;
Vice Chairman Feinstein--aye; Senator Wyden--no; Senator
Mikulski--aye; Senator Warner--aye; Senator Heinrich--no;
Senator King--aye; Senator Hirono--no.
By voice vote, the Committee adopted an amendment by
Senator Cotton, as modified by three separate second degree
amendments by Chairman Burr, Vice Chairman Feinstein, and
Senator King, to require the Director of National Intelligence
to lead a process for declassifying and making publicly
available information on released Guantanamo detainees.
Vote to report the committee bill
The Committee voted to report the bill, as amended, by a
vote of 14 ayes and 1 no. The votes in person or by proxy were
as follows: Chairman Burr--aye; Senator Risch--aye; Senator
Coats--aye; Senator Rubio--aye; Senator Collins--aye; Senator
Blunt--aye; Senator Lankford--aye; Senator Cotton--aye; Vice
Chairman Feinstein--aye; Senator Wyden--no; Senator Mikulski--
aye; Senator Warner--aye; Senator Heinrich--aye; Senator King--
aye; and Senator Hirono--aye.
By unanimous consent, the Committee authorized the staff to
make technical and conforming changes in the bill, report, and
classified annex, following the completion of the mark-up.
Compliance With Rule XLIV
Rule XLIV of the Standing Rules of the Senate requires
publication of a list of any ``congressionally directed
spending item, limited tax benefit, and limited tariff
benefit'' that is included in the bill or the committee report
accompanying the bill. Consistent with the determination of the
Committee not to create any congressionally directed spending
items or earmarks, none have been included in the bill, the
report to accompany it, or the classified schedule of
authorizations. The bill, report, and classified schedule also
contain no limited tax benefits or limited tariff benefits.
Estimate Of Costs
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On June 3,
2016, the Committee transmitted this bill to the Congressional
Budget Office and requested an estimate of the costs incurred
in carrying out the unclassified provisions.
Evaluation of Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
ADDITIONAL VIEWS OF SENATOR WARNER
I am happy that the range of amendments I offered this year
have all been accepted into the bill, including a number of
provisions relating to my priorities of modernizing how the
nation undertakes its planning for, and acquisition of,
overhead satellite systems, including better coordination and
collaboration between the Intelligence Community (IC) and the
Department of Defense.
I commend the Committee for diligently listening to the
calls that I and other Committee colleagues, including Senators
King, Mikulski, Hirono, Rubio and others, have made to closely
monitor this critical area of our national intelligence
program.
The bill directs the Director of National Intelligence, the
Secretary of Defense and Chairman of the Joint Chiefs to update
and deliver to the Committee the strategy we called for in last
year's bill for a comprehensive approach to the overhead
satellite architecture that supports U.S. intelligence
programs.
Such a strategy must ensure that the nation's satellite
architecture meets the nation's needs in peace- and war-time;
responsibly stewards the taxpayers' dollars; accurately takes
into account cost- and performance tradeoffs of the
architecture; meets realistic requirements; produces and
fosters excellence, innovation and competition; produces
innovative satellite systems in under five years that can
leverage common, standardized design elements and commercially-
available technologies; takes advantage of rapid advances in
commercial technology, innovation and commercial-like
acquisition practices; and fosters competition and a robust
industrial base.
My focus this year has also been to encourage the IC to
take advantage of the large number of overhead commercial and
emerging small satellite technologies that we expect to see
launched as soon as this year. The Community needs to be
prepared to take advantage of these resources and not to see
them as competition. Consistent with the National Space Policy,
the U.S. government should make maximum use of commercial space
capabilities and acquisition practices for national security
systems where the required performance can be met with
commodity technology to reduce acquisition timelines and costs,
promote competition, capitalize on the pace of commercial
technology advances, and avoid unnecessary government-unique
investments.
I, along with my Committee colleagues, have commended the
Community, and especially the National Geospatial-Intelligence
Agency (NGA) for pursuing new methods of intelligence
collection and analysis to inform, complement, and add to its
support of warfighter requirements by looking to emerging
commercial technology providers, including small satellite
companies, which hold the promise of rapid technological
innovation and potentially significant future cost savings to
the U.S. taxpayer.
As the Director of NGA, Robert Cardillo, noted last year,
``we are in the middle of an explosion of innovation across the
geospatial community. . . . I call this explosion the
`democratization' of geospatial information. This
`democratization' makes geospatial intelligence increasingly
transparent because of the huge number and diversity of
commercial and open sources of information.'' He went on to
say, ``the combined possibilities of an emergent commercial
space market, the small satellite revolution, and a vibrant
community of companies already mining the possibilities of
geospatial data has inspired us to seek new opportunities.Let
me reiterate--NGA wants to be the partner of choice for
advancing our craft and enabling consequence by cooperating,
not competing with, industry.''
At the same time, my intent is not to undercut, or reduce
current arrangements the Community has for acquiring commercial
overhead imagery, which have worked exceptionally well--
including through the ``Enhanced View'' arrangement. I would
like to see the Community ``expand the pie'' of available
commercial data, not to shrink what has been working well, as
we prepare for new technologies to come on line.
Elsewhere in the bill, I was happy to see the emphasis on
the need to enhance the way the Community undertakes research
and development (R&D). Building upon the work of the 2013
National Commission for the Review of the R&D Programs of the
IC, provisions I offered require the DNI to develop a plan to
implement an ``R&D Reserve Corps,'' as recommended by the
Commission, and to provide an updated assessment of the
Community's implementation of Commission's recommendations.
A provision I offered with Senator Mikulski calls on the IC
to provide metrics of how well they are doing at hiring
talented individuals who have gone through IC-supported
academic programs such as the NSA and DHS National Centers of
Academic Excellence in Information Assurance and Cyber Defense
Education (such as those at Virginia academic institutions
including at George Mason University, Hampton University, James
Madison University, Lord Fairfax Community College, Marymount
University, Norfolk State University, Northern Virginia
Community College, Radford University, Tidewater Community
College, and Virginia Tech).
Another provision I offered with Senator Blunt authorizes
funds to operate a Childcare Center at the National Geospatial-
Intelligence Agency's headquarters at Fort Belvoir, which is
much needed by the intelligence professionals who work there to
keep the nation safe, and where the childcare center building
has not been operational since it was built two years ago.
A provision I offered calls upon the IC, in partnership
with the U.S. Air Force, to consider the role and contribution
to our national security space launch capacity of spaceports or
launch and range complexes that are state-owned and operated,
and commercially licensed by the Federal Aviation
Administration--such as Virginia's Wallops Island. In
supporting this provision the Committee cites the Chief of
Staff of the U.S. Air Force, General Mark Welsh, who recently
stated, ``As we look at this space enterprise and how we do it
differently in the future, as we look more at disaggregation,
microsats, cube sats, small sats, things that don't have to go
from a large launch complex all the time, I think proliferating
launch complexes is probably going to be a natural outshoot of
this. I think it's commercially viable, it may be a way for
companies to get into the launch business who could not afford
to get into it or don't see a future in it and for large
national security space launches, but I think this has got to
be part of the strategy that this whole national team puts
together as we look to the future.''
In closing, I wish to reiterate how proud I am to represent
the thousands of current and former members of the intelligence
agencies who live, work, or retire in Virginia. Because they
are not able to discuss their very important work with friends
and even family members, I will continue to be a strong
advocate for them in Congress, and will continue to pursue
efforts to recognize and honor their contributions to the
nation.
Mark R. Warner
ADDITIONAL VIEWS OF SENATOR COATS
The Defense Intelligence Agency (DIA) is unique among its
peer agencies in the Intelligence Community, as it's charged
with twin obligations that complement and at times conflict
with one another. The DIA's role as the premier combat support
agency and a national intelligence organization demand steady
leadership and an unshakable commitment to analytic objectivity
in the face of departmental allegiance or a sense of owed
deference to the military rank structure. In my view, the DIA's
continued stewardship by a uniformed military officer is
irreconcilable with this aspiration.
As overseer for the entirety of the Defense Intelligence
Enterprise (DIE), the Director of the DIA is charged with
responsibilities that extend far beyond the agency itself. The
DIE is a community within a community, comprising the DIA,
Service Intelligence Centers, and the respective intelligence
centers of the various Combatant Commands. The tension
underlying this arrangement is a function of protocol and
military deference. While the DIA is a three-star command
within the Department of Defense (DOD) construct, the
intelligence operations in many of the DIE's constituent
entities function under the aegis of four-star commands--and
specifically, the four-star general leading those commands.
The sum of these underlying structural realities is that a
three-star general is ostensibly responsible for the analytic
quality and objectivity of DIA analysts who--as a function of
proximity and organizational architecture--work under four-star
generals. The problem with this construct should be self-
evident. If not, a demonstrative example can be found in
allegations that intelligence analysis was deliberately
manipulated at U.S. Central Command's Joint Intelligence Center
(JICCENT) to favor desired policy outcomes. Notably absent from
this episode is the DIA Director's exercise of evocative
supervisory responsibility over the JICCENT work product, which
would be in fact anathema to the command and rank structure
within which the DIA and U.S. Central Command exist in relation
to one another.
While my concerns are most acutely agitated by the
referenced allegations, they do not end there. The DIA faces
systemic issues, including incoherence of mission, resistance
to change, and unwillingness to meaningfully define its
customer base. The agency faces seemingly limitless
intelligence requirements and unique structural challenges that
hinder its ability to satisfy customers in the DOD, Military
Departments, Unified Combatant Commands, and the broader
Intelligence Community (IC). The present approach appears
instead to be a mechanical assumption of responsibility for any
conceivable intelligence requirement that a boundless
population of customers might level on the DIA. Surely, this is
inconsistent with the cultivation of deep-seated professional
expertise, proficiency, and organizational identity. At a
minimum, it is inefficient and unsustainable.
In the course of our Committee debate on the Intelligence
Authorization Act for Fiscal Year 2017, I introduced an
amendment that would mandate a transition to civilian
leadership at the DIA. I do not take lightly the intent, and I
am sensitive to the deviation from historical precedent. I am
nonetheless compelled to advocate for this change in the DIA's
leadership construct. It is a necessary step toward addressing
an agency beset by the challenges I have outlined, although I
recognize it will not on its own resolve all of them. Civilian
leadership of the DIA would in my view change the obstructive
dynamic that presently defines the agency's relationship with
important DIE constituents, not the least of which are the
Combatant Commands--and especially U.S. Central Command. With
operational responsibility for wars in Syria, Iraq, and
Afghanistan, the intelligence produced under U.S. Central
Command auspices must be incorruptible in practice and
perception. Present circumstances, however, invite the opposite
judgment.
While the ultimate version of the bill that was reported to
the full Senate did not include my proposed amendment, I am
hopeful this discussion will continue within the Committee,
between the Armed Services and Intelligence Committees, and
with the IC and DOD. The intelligence needs of the U.S.
warfighter, and the broader national security ecosystem, demand
that we cooperatively address this issue.
Dan Coats.
ADDITIONAL VIEWS OF SENATORS HEINRICH AND HIRONO
This important bill authorizes funding for key intelligence
priorities, including programs to address the threat of
terrorism. We supported the bill during Committee
consideration, and look forward to further discussion as the
bill moves forward, especially on those provisions that have
not yet been subject to public debate.
We are particularly concerned about two provisions in the
bill.
The first is a provision added to the bill by amendment.
This amendment would grant new authority to the FBI to obtain
electronic communication transactional records (ECTRs) using
National Security Letters (NSLs), which compel recipients to
allow government access to records without a court order.
The FBI has compared expanding these authorities to fixing
a ``typo'' in the Electronic Communications Privacy Act (ECPA).
However, during consideration of ECPA reform legislation in
1993, the House Judiciary Committee said in its committee
report that ``Exempt from the judicial scrutiny normally
required for compulsory process, the national security letter
is an extraordinary device. New applications are disfavored.''
The House Judiciary Committee report also makes clear that
the bill's changes to Section 2709(b) of ECPA were a
``modification of the language originally proposed by the
FBI.''
This does not support claims that the removal of the ECTR
language was a ``typo.''
Instead, the ECTR amendment to this bill represents a vast
expansion of FBI authorities. Currently, the FBI is permitted
to use NSLs only to obtain basic subscriber information about
telecommunications--name, address, length of service, and local
and long distance toll billing records. However, this amendment
would broaden that list to include electronic communication
transactional records, which the FBI could then obtain from
service providers by merely certifying relevance to an
investigation with no court order required.
The FBI can already obtain ECTRs with a court order using
other authorities, but this broad new authority would allow the
FBI to obtain internet transactional information that is far
more revealing than phone records, to include records of emails
sent and received, cell site location data, and a person's
website browsing history--all without any court approval or
independent oversight.
In addition, this bill report asserts that ``certain
providers'' noncompliance is substantially impairing the FBI's
ability to conduct national security investigations.'' Leaving
aside the question of whether adherence to the law equates to
`noncompliance,' the FBI has merely stated, but not yet made a
convincing case, that its conduct of national security
investigations has been harmed by its inability to access ECTRs
via National Security Letters.
Even as other committees in the Senate are working on ECPA
reform legislation in open hearings, we should not be marking
up a bill behind closed doors that makes a major change to
existing statute without public discussion and debate.
We are also concerned about Section 603, which would narrow
the oversight responsibilities of the Privacy and Civil
Liberties Oversight Board (PCLOB). In additional views we
submitted to the FY 2016 Intelligence Authorization Act report,
we noted that we did not look favorably on a provision in the
House-passed FY 2016 bill that would restrict PCLOB's mandate.
Unfortunately, that provision became law. This year, it is the
Senate bill that seeks to further constrain this small but
important organization.
The PCLOB is the only independent, cross-government agency
charged specifically with ensuring that the government's
efforts to prevent terrorism are balanced with the need to
protect privacy and civil liberties. Section 603 of the
Intelligence Authorization Act would limit the authority of the
PCLOB by narrowing its authority to review government programs
to only those that impact the privacy and civil liberties of
U.S. persons.
While the PCLOB already focuses primarily on U.S. persons,
it is not mandated to do so exclusively. Limiting the PCLOB's
mandate to only U.S. persons could create ambiguity about the
scope of the PCLOB's mandate, raising questions in particular
about how the PCLOB should proceed in the digital domain, where
individuals' U.S. or non-U.S. status is not always apparent. It
is conceivable, for example, that under this restriction, the
PCLOB could not have reviewed the NSA's Section 702
surveillance program, which focuses on the communications of
foreigners located outside of the United States, but which is
also acknowledged to be incidentally collecting Americans'
communications in the process.
The PCLOB is a small body, created as part of the
Implementing Regulations of the 9/11 Commission Act of 2007
without any authority to implement its recommendations. However
small, the PCLOB's creation recognized that the challenges of
balancing privacy and civil liberties with our national
security would only increase as our world becomes smaller due
to the proliferation of new types of communication and other
global interconnections.
The PCLOB has two fundamental responsibilities. First, it
is charged with reviewing and analyzing executive branch
counter-terrorism actions to ensure that the actions our
government take appropriately protect privacy and civil
liberties. Second, it is charged with making sure that privacy
and civil liberty protections are considered in the development
of our counter-terrorism policies. In the post-9/11 world we
live in, the PCLOB provides a critical voice within the
executive branch that helps shape how our nation conducts
itself as we contend with global terrorism and other
challenges. Yet for the second year in a row, Congress would be
narrowing PCLOB's jurisdiction. We believe this is not the
right message to send.
Martin Heinrich.
Mazie K. Hirono.
MINORITY VIEWS OF SENATOR WYDEN
While I respect the effort that my colleagues have put into
drafting this year's Intelligence Authorization Act, I opposed
this bill because it would dramatically and unnecessarily
expand government surveillance authorities, and would undermine
independent oversight of America's intelligence agencies.
National Security Letters
Specifically, this bill contains language--section 803--
that would authorize individual Federal Bureau of Investigation
(FBI) field offices to demand Americans' email and Internet
records simply by issuing a National Security Letter, with no
court oversight whatsoever.
This authority currently exists for phone records, and FBI
officials have repeatedly suggested that it would be convenient
if `electronic communication transaction records,' such as
email and Internet records, could be collected in the same way.
But convenience alone does not justify such a dramatic erosion
of Americans' constitutional rights.
If FBI officials have reason to suspect that an individual
is connected to terrorism or espionage, they can already access
that person's email and Internet records by simply obtaining an
order from the Foreign Intelligence Surveillance Court. These
orders can be issued in secret, and require relatively little
evidence--the FBI simply needs to assert that the records are
``relevant to an investigation.'' But requiring the approval of
an independent judge provides an important check against the
abuse or misuse of this authority by the FBI. By contrast,
National Security Letters are not reviewed by a judge unless a
company that receives one attempts to challenge it.
I certainly appreciate the FBI's interest in obtaining
records about potential suspects quickly. But Foreign
Intelligence Surveillance Court judges are very capable of
reviewing and approving requests for court orders in a timely
fashion. And section 102 of the recently-passed USA FREEDOM Act
gives the FBI new authority to obtain records immediately in
emergency situations, and then seek court review after the
fact. I strongly supported the passage of that provision, which
I first proposed in 2013. By contrast, I do not believe it is
appropriate to give the government broad new surveillance
authorities just because FBI officials do not like doing
paperwork. If the FBI's own process for requesting court orders
is too slow, then the appropriate solution is bureaucratic
reforms, not a major expansion of government surveillance
authorities.
While this bill does not clearly define `electronic
communication transaction records,' this term could easily be
read to encompass records of whom individuals exchange emails
with and when, as well as well as individuals' login history,
IP addresses, and Internet browsing history. This sort of
surveillance can clearly reveal a great deal of personal
information about individual Americans. Our Founding Fathers
rightly argued that such intrusive searches should be approved
by independent judges.
It is worth noting that President George W. Bush's
administration reached the same conclusion. In November 2008,
the Justice Department's Office of Legal Counsel advised the
FBI that National Security Letters could only be used to obtain
certain types of records, and this list did not include
electronic communication transaction records. The FBI has
unfortunately not adhered to this guidance, and has at times
continued to issue National Security Letters for electronic
communications records. A number of companies that have
received these overly broad National Security Letters have
rightly challenged them as improper. Broadening the National
Security Letter law to include electronic communication
transaction records would be a significant expansion of the
FBI's statutory authority.
And unfortunately, the FBI's track record with its existing
National Security Letter authorities includes a substantial
amount of abuse and misuse. These problems have been
extensively documented in reports by the Justice Department
Inspector General from 2007, 2008, 2010 and 2014, so I will not
repeat the details of these reports here. In my judgment, it
would be reckless to expand this particular surveillance
authority when the FBI has so frequently failed to use its
existing authorities responsibly.
Privacy and Civil Liberties Oversight Board
Separately, I am troubled that this bill would erode the
jurisdiction of the independent Privacy and Civil Liberties
Oversight Board, for the second year in a row.
Specifically, the bill would narrow the Board's statutory
jurisdiction to cover only programs that impact the privacy and
civil liberties of U.S. persons. To date, the Board's oversight
has focused very much on U.S. persons, and in my judgment this
is entirely appropriate. But if the Intelligence Committee
simply wanted to encourage the Board to maintain this focus,
that could be accomplished with non-binding report language.
Instead, this provision amends the law to limit the Board's
official purview.
This is concerning because in the digital domain,
individuals' U.S. or non-U.S. status is not always readily
apparent, and restricting the Board in this way could
discourage or even prevent the Board from examining programs
whose impact on U.S. persons is not clear at first glance.
Additionally, while I support the Board's current focus on
U.S. persons, it is easy to envision situations in which
tasking the Board to produce a one-time report that also looked
at non-U.S. persons might be appropriate. This provision would
arguably prohibit the Board from taking on such projects.
Furthermore, I would note that over the past few years the
Executive Branch has made real efforts to mitigate the
diplomatic and economic damage that overly broad surveillance
activities have caused. These efforts continue to be a work in
progress, and foreign regulators continue to raise concerns
about U.S. surveillance as justification for opposing
agreements that would benefit American consumers and the U.S.
tech industry. I am therefore concerned that narrowing the
Board's jurisdiction and signaling that the U.S. has no regard
for the privacy of other countries' citizens would play into
the hands of foreign protectionists.
Finally, I am troubled by the message that the Intelligence
Committee is sending by supporting this provision. Over the
past three years, the Privacy and Civil Liberties Oversight
Board has done outstanding and highly professional work. It has
examined large, complex surveillance programs and evaluated
them in detail, and it has produced public reports and
recommendations that are quite comprehensive and useful.
Indeed, the Board's reports on major surveillance programs are
the most thorough publicly available documents on this topic.
My concern is that by acting to restrict the Board's purview
for the second year in a row, and by making unwarranted
criticisms of the Board's staff in this report, the
Intelligence Committee is sending the message that the Board
should not do its job too well.
Unfortunately, while I appreciate that this bill includes a
proposal that I and a bipartisan, bicameral group of colleagues
have put forward to allow the Board to hire staff even when the
Board's chair position is vacant, the inclusion of this
provision does not outweigh my substantial concerns with this
bill.
I will continue to oppose this bill as long as the
objectionable provisions noted above are included. I hope to be
able to work with colleagues to remove these provisions prior
to consideration of the bill by the full Senate. My further
additional views on provisions contained in the classified
annex to this bill can be found in the annex itself.
Ron Wyden.
[all]
