Continuing his career-long practice of publicly announcing his holds on legislation, U.S. Senator Ron Wyden (D-Ore.), a senior member of the Senate Select Committee on Intelligence (SSCI), announced that he will block unanimous consent requests to pass a five-year extension of the FISA Amendments Act of 2008 (FAA).
Wyden identified two specific concerns that he believes Congress must address before agreeing to a long-term extension of FAA's authorities.
The first pertains to the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under the FISA Amendments Act authorities. Last Summer, he and Senator Mark Udall asked the Administration for an estimate of the "number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act." The Office of the Director of National Intelligence responded that it was "not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA." Nearly a year later, Congress has yet to receive an estimate of the number of Americans who have had their communications collected under FAA.
"The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States," Wyden explains in his hold statement. "Before Congress votes to renew these authorities it is important to understand how they are working in practice. In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act."
Wyden's second concern pertains to what he describes as the law's inadequate protections against warrantless "back door" searches of Americans.
"I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act," Wyden writes. "Then it is possible that this number could be quite large. Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American."
Wyden and U.S. Senator Mark Udall (D-Colo.) offered an amendment during the Intelligence Committee's markup of the FISA Amendments Act extension to prohibit warrantless searches for Americans' communications. After this amendment was defeated Wyden and Udall announced that they would keep working to enact protections against "back door searches" of this nature. You can read their additional remarks here: http://intelligence.senate.gov/pdfs112th/112174.pdf
A two-and-a-half year extension of the FISA Amendments Act was previously included in a version of the Fiscal Year 2012 Intelligence Authorization bill, but was removed in response to Senator Wyden's objections.