	Introduction

Recent media stories about National Security Agency (NSA) surveillance address unauthorized disclosures of two different intelligence collection programs. These programs arise from provisions of the Foreign Intelligence Surveillance Act (FISA). As such, where possible, the information contained in this report distinguishes between the two. The second program targets the electronic communications of non-U.S. persons while they are abroad, but also collects some communications unrelated to those targets. The last section of this report discusses legislation that has been proposed in response to information disclosed about NSA surveillance. What Information Is Being Collected? Domestic Collection of Domestic Phone Records — collected under Section 215 of the USA PATRIOT ACT: On Wednesday, June 5, 2013, The Guardian reported that NSA collects in bulk the telephone records of millions of U.S. customers of Verizon, pursuant to an order from the Foreign Intelligence Surveillance Court (FISC). Intelligence officials have stated that the data are limited to the number that was dialed from, the number that was dialed to, and the date and duration of the call. In accordance with Section 702, this collection program appears largely to involve the collection of data, including the content of communications, of foreign targets overseas whose emails and other forms of electronic communication flow through networks in the United States. Compared to the breadth of phone records collection under Section 215, this program is more discriminating in terms of its targets—it is focused on the communications of non-U.S. persons located outside the United States—but broader in terms of the type of information collected. Of these communications, 91% were acquired "directly from Internet Service Providers." The other 9% were acquired through what NSA calls "upstream collection," meaning acquisition while Internet traffic is in transit from one unspecified location to another. Specifically, Section 215 modified the business records provisions of FISA to allow the FBI to apply to the FISC for an order compelling a person to produce "any tangible thing," including records held by a telecommunications provider concerning the number and length of communications, but not the contents of those communications. Following the disclosure of the FISC order compelling Verizon to produce large amounts of telephony metadata, some commentators have expressed skepticism regarding how there could be "reasonable grounds to believe" that such a broad amount of data could be said to be "relevant to an authorized investigation," as required by the statute. The DNI has stated that the recently disclosed collection of foreign intelligence information from electronic communication service providers has been authorized under Section 702 of FISA, which specifically concerns acquisitions targeting non-U.S. persons who are overseas. Specifically, an acquisition:
May not intentionally target any person known at the time of acquisition to be located in the United States; May not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; May not intentionally target a U.S. person reasonably believed to be located outside the United States; May not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and Must be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States. Arguments For and Against the Two Programs

The Administration has argued that the surveillance activities leaked to the press, in addition to being subject to oversight by all three branches of government, are important to national security and have helped disrupt terror plots. These arguments have not always distinguished between the two programs, but generally the Administration appears to have taken the position that collection pursuant to Section 702 is an important tool on a broad range of national security issues and that collection pursuant to Section 215 has been useful in a discrete number of terrorism cases. Some Members have also proposed legislation intended to provide greater transparency of opinions of the FISC and FISCR.
Recent attention concerning National Security Agency (NSA) surveillance pertains to unauthorized disclosures of two different intelligence collection programs. Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and under which authorities the NSA is acting. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities.
The first program collects in bulk the phone records—including the number that was dialed from, the number that was dialed to, and the date and duration of the call—of customers of Verizon and possibly other U.S. telephone service providers. It does not collect the content of the calls or the identity of callers. The data are collected pursuant to Section 215 of the USA PATRIOT ACT, which amended the Foreign Intelligence Surveillance Act (FISA) of 1978. Section 215 allows the FBI, in this case on behalf of the NSA, to apply to the Foreign Intelligence Surveillance Court (FISC) for an order compelling a person to produce "any tangible thing," such as records held by a telecommunications provider, if the tangible things sought are "relevant to an authorized investigation." Some commentators have expressed skepticism regarding how such a broad amount of data could be said to be "relevant to an authorized investigation," as required by the statute. In response to these concerns, the Obama Administration subsequently declassified portions of a FISC order authorizing this program and a "whitepaper" describing the Administration's legal reasoning.
The second program targets the electronic communications, including content, of foreign targets overseas whose communications flow through American networks. These data are collected pursuant to Section 702 of FISA, which was added by the FISA Amendments Act of 2008. This program acquires information from Internet service providers, as well as through what NSA terms "upstream" collection that appears to acquire Internet traffic while it is in transit from one location to another. Although this program targets the communications of foreigners who are abroad, the Administration has acknowledged that technical limitations in the "upstream" collection result in the collection of some communications that are unrelated to the target or that may take place between persons in the United States. Notwithstanding these technical limitations, the FISC has held that this program is consistent with the requirements of both Section 702 and the Fourth Amendment provided that there are sufficient safeguards in place to identify and limit the retention, use, or dissemination of such unrelated or wholly domestic communications.
The Obama Administration has argued that these surveillance activities, in addition to being subject to oversight by all three branches of government, are important to national security and have helped disrupt terror plots. These arguments have not always distinguished between the two programs, and some critics, while acknowledging the value of information collected using Section 702 authorities, are skeptical of the value of the phone records held in bulk at NSA. Thus, recent legislative proposals have primarily focused on modifying Section 215 to preclude the breadth of phone records collection currently taking place. They have also emphasized requiring greater public disclosure of FISC opinions, including the opinion(s) allowing for the collection of phone records in bulk.
This report discusses the specifics of these two NSA collection programs. It does not address other questions that have been raised in the aftermath of these leaks, such as the potential harm to national security caused by the leaks or the intelligence community's reliance on contractors.