110th CONGRESS
1st Session
S. 1114
To reiterate the exclusivity of the Foreign Intelligence Surveillance
Act of 1978 as the sole authority to permit the conduct of electronic surveillance,
to modernize surveillance authorities, and for other purposes.
IN THE SENATE OF THE UNITED STATES
April 16, 2007
Mrs. FEINSTEIN (for herself and Mr. SPECTER) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
A BILL
To reiterate the exclusivity of the Foreign Intelligence Surveillance
Act of 1978 as the sole authority to permit the conduct of electronic surveillance,
to modernize surveillance authorities, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Foreign Intelligence Surveillance
Improvement and Enhancement Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY
Sec. 101. Reiteration of chapters 119, 121, and 206 of title 18, United
States Code, and Foreign Intelligence Surveillance Act of 1978 as exclusive
means by which domestic electronic surveillance may be conducted.
Sec. 102. Specific authorization required for any repeal or modification
of title I of the Foreign Intelligence Surveillance Act of 1978.
Sec. 103. Information for Congress on the terrorist surveillance program
and similar programs.
Sec. 104. Supreme Court review of the Terrorist Surveillance Program.
TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR
FOREIGN INTELLIGENCE PURPOSES
Sec. 201. Extension of period for applications for orders for emergency
electronic surveillance.
Sec. 202. Additional authority for emergency electronic surveillance.
Sec. 203. Foreign Intelligence Surveillance Court matters.
Sec. 204. Document management system for applications for orders approving
electronic surveillance.
Sec. 205. Additional personnel for preparation and consideration of applications
for orders approving electronic surveillance.
Sec. 206. Training of Federal Bureau of Investigation and National Security
Agency personnel in foreign intelligence surveillance matters.
Sec. 207. Enhancement of electronic surveillance authority in wartime.
TITLE III--CLARIFICATIONS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978
Sec. 301. Acquisition of foreign-foreign communications.
Sec. 302. Individualized FISA orders.
TITLE IV--OTHER MATTERS
Sec. 401. Authorization of appropriations.
Sec. 402. Effective date.
SEC. 2. DEFINITIONS.
(1) CONGRESSIONAL INTELLIGENCE COMMITTEES- The term `congressional intelligence
committees' means--
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the House of Representatives.
(2) FOREIGN INTELLIGENCE SURVEILLANCE COURT- The term `Foreign Intelligence
Surveillance Court' means the court established by section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) UNITED STATES PERSON- The term `United States person' has the meaning
given such term in section 101(i) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801(i)).
TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY
SEC. 101. REITERATION OF CHAPTERS 119, 121, AND 206 OF TITLE 18, UNITED
STATES CODE, AND FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AS EXCLUSIVE
MEANS BY WHICH DOMESTIC ELECTRONIC SURVEILLANCE MAY BE CONDUCTED.
(a) Exclusive Means- Notwithstanding any other provision of law, chapters
119, 121, and 206 of title 18, United States Code, and the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive
means by which electronic surveillance (as that term is defined in section
101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f))
may be conducted.
(b) Amendment to Foreign Intelligence Surveillance Act of 1978- Section
109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a))
is amended by striking `authorized by statute' each place it appears and
inserting `authorized by this title or chapter 119, 121, or 206 of title
18, United States Code'.
(c) Amendment to Title 18, United States Code- Section 2511(2)(a)(ii)(B)
of title 18, United States Code, is amended by striking `statutory requirements'
and inserting `requirements under the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.), this chapter, or chapters 121 or 206
of this title'.
SEC. 102. SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION
OF TITLE I OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) In General- Title I of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 109
the following new section:
`SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION OF TITLE
`Sec. 109A. No provision of law shall be construed to implicitly repeal
or modify this title or any provision thereof, nor shall any provision of
law be deemed to repeal or modify this title in any manner unless such provision
of law, if enacted after the date of the enactment of the Foreign Intelligence
Surveillance Improvement and Enhancement Act of 2007, expressly amends or
otherwise specifically cites this title.'.
(b) Clerical Amendment- The table of contents for that Act is amended by
inserting after the item relating to section 109 the following new item:
`Sec. 109A. Specific authorization required for any repeal or modification
of title.'.
SEC. 103. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM
AND SIMILAR PROGRAMS.
As soon as practicable after the date of the enactment of this Act, but
not later than seven days after such date, the President shall brief and
inform each member of the congressional intelligence committees on the following:
(1) The Terrorist Surveillance Program of the National Security Agency.
(2) Any program which involves, whether in part or in whole, the electronic
surveillance of United States persons in the United States for foreign
intelligence purposes, and which is conducted by any department, agency,
or other element of the United States Government, or by any entity at
the direction of a department, agency, or other element of the United
States Government, without fully complying with the procedures set forth
in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) or chapter 119, 121, or 206 of title 18, United States Code.
SEC. 104. SUPREME COURT REVIEW OF THE TERRORIST SURVEILLANCE PROGRAM.
(a) In General- Upon petition by the United States or any party to the underlying
proceedings, the Supreme Court of the United States shall review a final
decision on the merits concerning the constitutionality of the Terrorist
Surveillance Program in at least one case that is pending in the courts
of the United States on the date of enactment of this Act.
(b) Expedited Consideration- It shall be the duty of the Supreme Court of
the United States to advance on the docket and to expedite to the greatest
possible extent the disposition of any matter brought under subsection (a).
(c) Definition- In this section, the term `Terrorist Surveillance Program'
means the program identified by the President on December 17, 2005, to intercept
international communications into and out of the United States of persons
linked to al Qaeda or related terrorist organizations.
TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR
FOREIGN INTELLIGENCE PURPOSES
SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR EMERGENCY
ELECTRONIC SURVEILLANCE.
Section 105(f) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805(f)) is amended by striking `72 hours' both places it appears
and inserting `168 hours'.
SEC. 202. ADDITIONAL AUTHORITY FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805) is amended--
(1) by redesignating subsections (g), (h), (i), and (j) as subsections
(h), (i), (j), and (k), respectively; and
(2) by inserting after subsection (f) the following new subsection (g):
`(g)(1)(A) Notwithstanding any other provision of this title and subject
to the provisions of this subsection, the Attorney General may, with the
concurrence of the Director of National Intelligence, appoint appropriate
supervisory or executive personnel within the Federal Bureau of Investigation
and the National Security Agency to authorize electronic surveillance on
a United States person in the United States on an emergency basis pursuant
to the provisions of this subsection.
`(B) For purposes of this subsection, an intelligence agent or employee
acting under the supervision of a supervisor or executive appointed under
subparagraph (A) may conduct emergency electronic surveillance under this
subsection if such supervisor or executive reasonably determines that--
`(i) an emergency situation exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information before an order
authorizing such surveillance can with due diligence be obtained; and
`(ii) the factual basis exists for the issuance of an order approving
such surveillance under this title.
`(2) The supervisors and executives appointed by the Attorney General under
paragraph (1) may only be officials as follows:
`(A) In the case of the Federal Bureau of Investigation, officials at
or above the level of Special Agent in Charge.
`(B) In the case of the National Security Agency, officials at or above
the level of head of branch of the National Security Agency.
`(3) A supervisor or executive responsible for the emergency employment
of electronic surveillance under this subsection shall submit to the Attorney
General a request for approval of the surveillance within 24 hours of the
commencement of the surveillance. The request shall set forth the ground
for the belief specified in paragraph (1), together with such other information
as the Attorney General shall require.
`(4)(A) The review of a request under paragraph (3) shall be completed by
the official concerned under that paragraph as soon as practicable, but
not more than 72 hours after the commencement of the electronic surveillance
concerned under paragraph (1).
`(B)(i) If the official concerned determines that the electronic surveillance
does not meet the requirements of paragraph (1), the surveillance shall
terminate immediately and may not be recommenced by any supervisor or executive
appointed under paragraph (1), or any agent or employee acting under the
supervision of such supervisor or executive, absent additional facts or
changes in circumstances that lead a supervisor or executive appointed under
paragraph (1) to reasonably believe that the requirements of paragraph (1)
are satisfied.
`(ii) In the event of a determination under clause (i), the Attorney General
shall not be required, under section 106(j), to notify any United States
person of the fact that the electronic surveillance covered by such determination
was conducted before the termination of the surveillance under that clause.
However, the official making such determination shall notify the court established
by section 103(a) of such determination, and shall also provide notice of
such determination in the first report that is submitted under section 108(a)
after such determination is made.
`(C) If the official concerned determines that the surveillance meets the
requirements of subsection (f), the surveillance may continue, subject to
the requirements of paragraph (5).
`(5)(A) An application in accordance with this title shall be made to a
judge having jurisdiction under section 103 as soon as practicable but not
more than 168 hours after the commencement of electronic surveillance under
paragraph (1).
`(B) In the absence of a judicial order approving electronic surveillance
commenced under paragraph (1), the surveillance shall terminate at the earlier
of--
`(i) when the information sought is obtained;
`(ii) when the application under subparagraph (A) for an order approving
the surveillance is denied; or
`(iii) 168 hours after the commencement of the surveillance, unless an
application under subparagraph (A) is pending, in which case the surveillance
may continue for up to an additional 24 hours while the judge has the
application under advisement.
`(C) If an application under subparagraph (A) for an order approving electronic
surveillance commenced under paragraph (1) is denied, or in any other case
in which the surveillance is terminated and no order approving the surveillance
is issued by a court, the use of information obtained or evidence derived
from the surveillance shall be governed by the provisions of subsection
(f).
`(D) The denial of an application submitted under subparagraph (A) may be
reviewed as provided in section 103.
`(6) Any person who engages in the emergency employment of electronic surveillance
under paragraph (1) shall follow the minimization procedures otherwise required
by this title for the issuance of a judicial order approving the conduct
of electronic surveillance.
`(7) Not later than 30 days after appointing supervisors and executives
under paragraph (1) to authorize the exercise of authority in that paragraph,
the Attorney General, in consultation with the Director of National Intelligence,
shall submit to the court established by section 103(a), the Select Committee
on Intelligence of the Senate, and the Permanent Select Committee on Intelligence
of the House of Representatives, and bring up to date as required, a report
that--
`(A) identifies the number of supervisors and executives who have been
so appointed and the positions held by such supervisors and executives;
and
`(B) sets forth guidelines or other directives that describe the responsibilities
of such supervisors and executives under this subsection.'.
SEC. 203. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) Authority for Additional Judges- Section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
(1) by inserting `(1)' after `(a)';
(2) in paragraph (1), as so designated, by inserting `at least' before
`seven of the United States judicial circuits';
(3) by designating the second sentence as paragraph (4) and indenting
such paragraph, as so designated, two ems from the left margin; and
(4) by inserting after paragraph (1), as so designated, the following
new paragraph:
`(2) In addition to the judges designated under paragraph (1), the Chief
Justice of the United States may designate as judges of the court established
by paragraph (1) such judges appointed under Article III of the Constitution
of the United States as the Chief Justice determines appropriate in order
to provide for the prompt and timely consideration under section 105 of
applications under section 104 for electronic surveillance under this title.
Any judge designated under this paragraph shall be designated publicly.'.
(b) Consideration of Emergency Applications- Such section is further amended
by inserting after paragraph (2), as added by subsection (a)(4) of this
section, the following new paragraph:
`(3) A judge of the court shall make a determination to approve, deny, or
seek modification of an application submitted pursuant to section subsection
(f) or (g) of section 105 not later than 24 hours after the receipt of such
application by the court.'.
SEC. 204. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS APPROVING
ELECTRONIC SURVEILLANCE.
(a) System Required- The Attorney General shall, in consultation with the
Director of the Federal Bureau of Investigation, the Director of the National
Security Agency, and the Foreign Intelligence Surveillance Court, develop
and implement a secure, classified document management system that permits
the prompt preparation, modification, and review by appropriate personnel
of the Department of Justice, the Federal Bureau of Investigation, the National
Security Agency, and other applicable elements of the United States Government
of applications under section 104 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1804) before their submittal to the Foreign Intelligence
Surveillance Court.
(b) Scope of System- The document management system required by subsection
(a) shall--
(1) permit and facilitate the prompt submittal of applications to the
Foreign Intelligence Surveillance Court under section 104 or 105(g)(5)
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804 and
1805(g)(5)); and
(2) permit and facilitate the prompt transmittal of rulings of the Foreign
Intelligence Surveillance Court to personnel submitting applications described
in paragraph (1).
SEC. 205. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF APPLICATIONS
FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) Office of Intelligence Policy and Review-
(1) ADDITIONAL PERSONNEL- The Office of Intelligence Policy and Review
of the Department of Justice is hereby authorized such additional personnel
as may be necessary to carry out the prompt and timely preparation, modification,
and review of applications under section 104 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804) for orders under section 105
of that Act (50 U.S.C. 1805) approving electronic surveillance for foreign
intelligence purposes.
(2) ASSIGNMENT- The Attorney General shall assign personnel authorized
by paragraph (1) to and among appropriate offices of the National Security
Agency in order that such personnel may directly assist personnel of the
Agency in preparing applications described in that paragraph.
(b) Federal Bureau of Investigation-
(1) ADDITIONAL LEGAL AND OTHER PERSONNEL- The National Security Branch
of the Federal Bureau of Investigation is hereby authorized such additional
legal and other personnel as may be necessary to carry out the prompt
and timely preparation of applications under section 104 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for orders under
section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance
for foreign intelligence purposes.
(2) ASSIGNMENT- The Director of the Federal Bureau of Investigation shall
assign personnel authorized by paragraph (1) to and among the field offices
of the Federal Bureau of Investigation in order that such personnel may
directly assist personnel of the Bureau in such field offices in preparing
applications described in that paragraph.
(c) Additional Legal and Other Personnel for National Security Agency- The
National Security Agency is hereby authorized such additional legal and
other personnel as may be necessary to carry out the prompt and timely preparation
of applications under section 104 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1804) for orders under section 105 of that Act (50
U.S.C. 1805) approving electronic surveillance for foreign intelligence
purposes.
(d) Additional Legal and Other Personnel for Foreign Intelligence Surveillance
Court- There is hereby authorized for the Foreign Intelligence Surveillance
Court such additional staff personnel as may be necessary to facilitate
the prompt and timely consideration by that Court of applications under
section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1804) for orders under section 105 of that Act (50 U.S.C. 1805) approving
electronic surveillance for foreign intelligence purposes. Personnel authorized
by this paragraph shall perform such duties relating to the consideration
of such applications as that Court shall direct.
(e) Supplement Not Supplant- The personnel authorized by this section are
in addition to any other personnel authorized by law.
SEC. 206. TRAINING OF FEDERAL BUREAU OF INVESTIGATION AND NATIONAL SECURITY
AGENCY PERSONNEL IN FOREIGN INTELLIGENCE SURVEILLANCE MATTERS.
The Director of the Federal Bureau of Investigation and the Director of
the National Security Agency shall each, in consultation with the Attorney
General--
(1) develop regulations to establish procedures for conducting and seeking
approval of electronic surveillance on an emergency basis, and for preparing
and properly submitting and receiving applications and orders, under sections
104 and 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1804 and 1805); and
(2) prescribe related training for the personnel of the applicable agency.
SEC. 207. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME.
Section 111 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1811) is amended by striking `fifteen calendar days following a declaration
of war by the Congress.' and inserting `30 calendar days following any of
the following:
`(1) A declaration of war by the Congress.
`(2) An authorization for the use of military force within the meaning
of section 2(c)(2) of the War Powers Resolution (50 U.S.C. 1541(c)(2)).
`(3) A national emergency created by attack upon the United States, its
territories or possessions, or the Armed Forces within the meaning of
section 2(c)(3) of the War Powers Resolution (50 U.S.C. 1541(c)(3)).'.
TITLE III--CLARIFICATIONS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978
SEC. 301. ACQUISITION OF FOREIGN-FOREIGN COMMUNICATIONS.
(a) In General- Notwithstanding any other provision of this Act or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), no court
order shall be required for the acquisition through electronic surveillance
of the contents of any communication between one person who is not located
within the United States and another person who is not located within the
United States for the purpose of collecting foreign intelligence information
even if such communication passes through, or the surveillance device is
located within, the United States.
(b) Treatment of Intercepted Communications Involving Domestic Party- If
surveillance conducted as described in subsection (a) inadvertently collects
a communication in which at least one party is within the United States,
the contents of such communications shall be handled in accordance with
the minimization procedures set forth in section 101(h)(4) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)(4)).
(c) Definitions- In this section, the terms `contents', `electronic surveillance',
and `foreign intelligence information' have the meaning given such terms
in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801).
SEC. 302. INDIVIDUALIZED FISA ORDERS.
Any order issued pursuant to section 105 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1805) authorizing electronic surveillance shall be
supported by an individualized or particularized finding of probable cause
to believe the target of the electronic surveillance is a foreign power
or an agent of a foreign power.
TITLE IV--OTHER MATTERS
SEC. 401. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to
carry out this Act and the amendments made by this Act.
SEC. 402. EFFECTIVE DATE.
Except as provided in section 103, this Act, and the amendments made by
this Act, shall take effect on the date that is 30 days after the date of
the enactment of this Act.
END
