S 2440
Calendar No. 529
110th CONGRESS
1st Session
S. 2440
To amend the Foreign Intelligence Surveillance Act of 1978,
to modernize and streamline the provisions of that Act, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
December 10, 2007
Mr. REID introduced the following bill; which was read the first time
December 11, 2007
Read the second time and placed on the calendar
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978,
to modernize and streamline the provisions of that Act, 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 `FISA Improvement 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--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside
the United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic communications may be conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Technical and conforming amendments.
TITLE II--OTHER PROVISIONS
Sec. 202. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS OUTSIDE
THE UNITED STATES.
(a) In General- The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
`TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
`SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC SURVEILLANCE.
`Nothing in the definition of electronic surveillance under section
101(f) shall be construed to encompass surveillance that is targeted
in accordance with this title at a person reasonably believed to be
located outside the United States.
`SEC. 702. DEFINITIONS.
`(a) In General- The terms `agent of a foreign power', `Attorney General',
`contents', `electronic surveillance', `foreign intelligence information',
`foreign power', `minimization procedures', `person', `United States',
and `United States person' shall have the meanings given such terms
in section 101, except as specifically provided in this title.
`(b) Additional 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; COURT- The terms `Foreign
Intelligence Surveillance Court' and `Court' mean the court established
by section 103(a).
`(3) FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW; COURT OF REVIEW-
The terms `Foreign Intelligence Surveillance Court of Review' and
`Court of Review' mean the court established by section 103(b).
`(4) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic
communication service provider' means--
`(A) a telecommunications carrier, as that term is defined in section
3 of the Communications Act of 1934 (47 U.S.C. 153);
`(B) a provider of electronic communications service, as that term
is defined in section 2510 of title 18, United States Code;
`(C) a provider of a remote computing service, as that term is defined
in section 2711 of title 18, United States Code;
`(D) any other communication service provider who has access to
wire or electronic communications either as such communications
are transmitted or as such communications are stored; or
`(E) an officer, employee, or agent of an entity described in subparagraph
(A), (B), (C), or (D).
`(5) ELEMENT OF THE INTELLIGENCE COMMUNITY- The term `element of the
intelligence community' means an element of the intelligence community
specified in or designated under section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4)).
`SEC. 703. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF CERTAIN
PERSONS OUTSIDE THE UNITED STATES.
`(a) Authorization- Notwithstanding any other law, the Attorney General
and the Director of National Intelligence may authorize jointly, for
periods of up to 1 year, the targeting of persons reasonably believed
to be located outside the United States to acquire foreign intelligence
information.
`(b) Limitations- An acquisition authorized under subsection (a)--
`(1) may not intentionally target any person known at the time of
acquisition to be located in the United States;
`(2) may not intentionally target a person reasonably believed to
be outside the United States if the purpose of such acquisition is
to target for surveillance a particular, known person reasonably believed
to be in the United States, except in accordance with title I; and
`(3) shall be conducted in a manner consistent with the fourth amendment
to the Constitution of the United States.
`(c) United States Persons Located Outside the United States-
`(1) ACQUISITION INSIDE THE UNITED STATES OF UNITED STATES PERSONS
OUTSIDE THE UNITED STATES- An acquisition authorized by subsection
(a) that occurs inside the United States may not target a United States
person except in accordance with the provisions of title I.
`(2) ACQUISITION OUTSIDE THE UNITED STATES OF UNITED STATES PERSONS
OUTSIDE THE UNITED STATES- An acquisition by an electronic, mechanical,
or other surveillance device outside the United States may not intentionally
target a United States person reasonably believed to be outside the
United States to acquire the contents of a wire or radio communication
sent by or intended to be received by that United States person under
circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes if the
technique were used inside the United States unless--
`(A) the Attorney General or the Attorney General's designee submits
an application to the Foreign Intelligence Surveillance Court that
includes a statement of the facts and circumstances relied upon
by the applicant to justify the Attorney General's belief that the
target of the acquisition is a foreign power or an agent of a foreign
power; and
`(B) the Foreign Intelligence Surveillance Court--
`(i) finds on the basis of the facts submitted by the applicant
there is probable cause to believe that the target of the electronic
surveillance is a foreign power or an agent of a foreign power;
and
`(ii) issues an ex parte order as requested or as modified approving
the targeting of that United States person.
`(A) SUBMITTAL TO FOREIGN INTELLIGENCE SURVEILLANCE COURT- Not later
than 30 days after the date of the enactment of this title, the
Attorney General shall submit to the Foreign Intelligence Surveillance
Court the procedures to be utilized in determining whether a target
reasonably believed to be outside the United States is a United
States person.
`(B) APPROVAL BY FOREIGN INTELLIGENCE SURVEILLANCE COURT- The procedures
submitted under subparagraph (A) shall be utilized as described
in that subparagraph only upon the approval of the Foreign Intelligence
Surveillance Court.
`(C) UTILIZATION IN TARGETING- Any targeting of persons authorized
by subsection (a) shall utilize the procedures submitted under subparagraph
(A) as approved by the Foreign Intelligence Surveillance Court under
subparagraph (B).
`(d) Conduct of Acquisition- An acquisition authorized under subsection
(a) may be conducted only in accordance with--
`(1) a certification made by the Attorney General and the Director
of National Intelligence pursuant to subsection (g); and
`(2) the targeting and minimization procedures required pursuant to
subsections (e) and (f).
`(e) Targeting Procedures-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with
the Director of National Intelligence, shall adopt targeting procedures
that are reasonably designed to ensure that any acquisition authorized
under subsection (a) is limited to targeting persons reasonably believed
to be located outside the United States.
`(2) JUDICIAL REVIEW- The procedures referred to in paragraph (1)
shall be subject to judicial review pursuant to subsection (i).
`(f) Minimization Procedures-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with
the Director of National Intelligence, shall adopt, consistent with
the requirements of section 101(h), minimization procedures for acquisitions
authorized under subsection (a).
`(2) JUDICIAL REVIEW- The minimization procedures required by this
subsection shall be subject to judicial review pursuant to subsection
(i).
`(A) REQUIREMENT- Subject to subparagraph (B), prior to the initiation
of an acquisition authorized under subsection (a), the Attorney
General and the Director of National Intelligence shall provide,
under oath, a written certification, as described in this subsection.
`(B) EXCEPTION- If the Attorney General and the Director of National
Intelligence determine that immediate action by the Government is
required and time does not permit the preparation of a certification
under this subsection prior to the initiation of an acquisition,
the Attorney General and the Director of National Intelligence shall
prepare such certification, including such determination, as soon
as possible but in no event more than 168 hours after such determination
is made.
`(2) REQUIREMENTS- A certification made under this subsection shall--
`(i) there are reasonable procedures in place for determining
that the acquisition authorized under subsection (a) is targeted
at persons reasonably believed to be located outside the United
States and that such procedures have been approved by, or will
promptly be submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);
`(ii) the procedures referred to in clause (i) are consistent
with the requirements of the fourth amendment to the Constitution
of the United States and do not permit the intentional targeting
of any person who is known at the time of acquisition to be located
in the United States;
`(iii) a significant purpose of the acquisition is to obtain foreign
intelligence information;
`(iv) the minimization procedures to be used with respect to such
acquisition--
`(I) meet the definition of minimization procedures under section
101(h); and
`(II) have been approved by, or will promptly be submitted for
approval by, the Foreign Intelligence Surveillance Court pursuant
to subsection (i);
`(v) the acquisition involves obtaining the foreign intelligence
information from or with the assistance of an electronic communication
service provider; and
`(vi) the acquisition does not constitute electronic surveillance,
as limited by section 701; and
`(B) be supported, as appropriate, by the affidavit of any appropriate
official in the area of national security who is--
`(i) appointed by the President, by and with the consent of the
Senate; or
`(ii) the head of any element of the intelligence community.
`(3) LIMITATION- A certification made under this subsection is not
required to identify the specific facilities, places, premises, or
property at which the acquisition authorized under subsection (a)
will be directed or conducted.
`(4) SUBMISSION TO THE COURT- The Attorney General shall transmit
a copy of a certification made under this subsection, and any supporting
affidavit, under seal to the Foreign Intelligence Surveillance Court
as soon as possible, but in no event more than 5 days after such certification
is made. Such certification shall be maintained under security measures
adopted by the Chief Justice of the United States and the Attorney
General, in consultation with the Director of National Intelligence.
`(5) REVIEW- The certification required by this subsection shall be
subject to judicial review pursuant to subsection (i).
`(1) AUTHORITY- With respect to an acquisition authorized under subsection
(a), the Attorney General and the Director of National Intelligence
may direct, in writing, an electronic communication service provider
to--
`(A) immediately provide the Government with all information, facilities,
or assistance necessary to accomplish the acquisition in a manner
that will protect the secrecy of the acquisition and produce a minimum
of interference with the services that such electronic communication
service provider is providing to the target; and
`(B) maintain under security procedures approved by the Attorney
General and the Director of National Intelligence any records concerning
the acquisition or the aid furnished that such electronic communication
service provider wishes to maintain.
`(2) COMPENSATION- The Government shall compensate, at the prevailing
rate, an electronic communication service provider for providing information,
facilities, or assistance pursuant to paragraph (1).
`(3) RELEASE FROM LIABILITY- Notwithstanding any other law, no cause
of action shall lie in any court against any electronic communication
service provider for providing any information, facilities, or assistance
in accordance with a directive issued pursuant to paragraph (1).
`(4) CHALLENGING OF DIRECTIVES-
`(A) AUTHORITY TO CHALLENGE- An electronic communication service
provider receiving a directive issued pursuant to paragraph (1)
may challenge the directive by filing a petition with the Foreign
Intelligence Surveillance Court.
`(B) ASSIGNMENT- The presiding judge of the Court shall assign the
petition filed under subparagraph (A) to 1 of the judges serving
in the pool established by section 103(e)(1) not later than 24 hours
after the filing of the petition.
`(C) STANDARDS FOR REVIEW- A judge considering a petition to modify
or set aside a directive may grant such petition only if the judge
finds that the directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not modify or
set aside the directive, the judge shall immediately affirm such
directive, and order the recipient to comply with the directive.
The judge shall provide a written statement for the record of the
reasons for a determination under this paragraph.
`(D) CONTINUED EFFECT- Any directive not explicitly modified or
set aside under this paragraph shall remain in full effect.
`(5) ENFORCEMENT OF DIRECTIVES-
`(A) ORDER TO COMPEL- In the case of a failure to comply with a
directive issued pursuant to paragraph (1), the Attorney General
may file a petition for an order to compel compliance with the directive
with the Foreign Intelligence Surveillance Court.
`(B) ASSIGNMENT- The presiding judge of the Court shall assign a
petition filed under subparagraph (A) to 1 of the judges serving
in the pool established by section 103(e)(1) not later than 24 hours
after the filing of the petition.
`(C) STANDARDS FOR REVIEW- A judge considering a petition shall
issue an order requiring the electronic communication service provider
to comply with the directive if the judge finds that the directive
was issued in accordance with paragraph (1), meets the requirements
of this section, and is otherwise lawful. The judge shall provide
a written statement for the record of the reasons for a determination
under this paragraph.
`(D) CONTEMPT OF COURT- Failure to obey an order of the Court issued
under this paragraph may be punished by the Court as contempt of
court.
`(E) PROCESS- Any process under this paragraph may be served in
any judicial district in which the electronic communication service
provider may be found.
`(A) APPEAL TO THE COURT OF REVIEW- The Government or an electronic
communication service provider receiving a directive issued pursuant
to paragraph (1) may file a petition with the Foreign Intelligence
Surveillance Court of Review for review of the decision issued pursuant
to paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction to
consider such a petition and shall provide a written statement for
the record of the reasons for a decision under this paragraph.
`(B) CERTIORARI TO THE SUPREME COURT- The Government or an electronic
communication service provider receiving a directive issued pursuant
to paragraph (1) may file a petition for a writ of certiorari for
review of the decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under seal
to the Supreme Court of the United States, which shall have jurisdiction
to review such decision.
`(A) REVIEW BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT- The
Foreign Intelligence Surveillance Court shall have jurisdiction
to review any certification required by subsection (d) or targeting
and minimization procedures adopted pursuant to subsections (e)
and (f).
`(B) SUBMISSION TO THE COURT- The Attorney General shall submit
to the Court any such certification or procedure, or amendment thereto,
not later than 5 days after making or amending the certification
or adopting or amending the procedures.
`(2) CERTIFICATIONS- The Court shall review a certification provided
under subsection (g) to determine whether the certification contains
all the required elements.
`(3) TARGETING PROCEDURES- The Court shall review the targeting procedures
required by subsection (e) to assess whether the procedures are reasonably
designed to ensure that the acquisition authorized under subsection
(a) is limited to the targeting of persons reasonably believed to
be located outside the United States.
`(4) MINIMIZATION PROCEDURES- The Court shall review the minimization
procedures required by subsection (f) to assess whether such procedures
meet the definition of minimization procedures under section 101(h).
`(A) APPROVAL- If the Court finds that a certification required
by subsection (g) contains all of the required elements and that
the targeting and minimization procedures required by subsections
(e) and (f) are consistent with the requirements of those subsections
and with the fourth amendment to the Constitution of the United
States, the Court shall enter an order approving the continued use
of the procedures for the acquisition authorized under subsection
(a).
`(B) CORRECTION OF DEFICIENCIES- If the Court finds that a certification
required by subsection (g) does not contain all of the required
elements, or that the procedures required by subsections (e) and
(f) are not consistent with the requirements of those subsections
or the fourth amendment to the Constitution of the United States,
the Court shall issue an order directing the Government to, at the
Government's election and to the extent required by the Court's
order--
`(i) correct any deficiency identified by the Court's order not
later than 30 days after the date the Court issues the order;
or
`(ii) cease the acquisition authorized under subsection (a).
`(C) REQUIREMENT FOR WRITTEN STATEMENT- In support of its orders
under this subsection, the Court shall provide, simultaneously with
the orders, for the record a written statement of its reasons.
`(A) APPEAL TO THE COURT OF REVIEW- The Government may appeal any
order under this section to the Foreign Intelligence Surveillance
Court of Review, which shall have jurisdiction to review such order.
For any decision affirming, reversing, or modifying an order of
the Foreign Intelligence Surveillance Court, the Court of Review
shall provide for the record a written statement of its reasons.
`(B) CONTINUATION OF ACQUISITION PENDING REHEARING OR APPEAL- Any
acquisitions affected by an order under paragraph (5)(B) may continue--
`(i) during the pending of any rehearing of the order by the Court
en banc; and
`(ii) during the pendency of any appeal of the order to the Foreign
Intelligence Surveillance Court of Review.
`(C) CERTIORARI TO THE SUPREME COURT- The Government may file a
petition for a writ of certiorari for review of a decision of the
Court of Review issued under subparagraph (A). The record for such
review shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such decision.
`(j) Judicial Proceedings- Judicial proceedings under this section shall
be conducted as expeditiously as possible.
`(k) Maintenance of Records-
`(1) STANDARDS- A record of a proceeding under this section, including
petitions filed, orders granted, and statements of reasons for decision,
shall be maintained under security measures adopted by the Chief Justice
of the United States, in consultation with the Attorney General and
the Director of National Intelligence.
`(2) FILING AND REVIEW- All petitions under this section shall be
filed under seal. In any proceedings under this section, the court
shall, upon request of the Government, review ex parte and in camera
any Government submission, or portions of a submission, which may
include classified information.
`(3) RETENTION OF RECORDS- A directive made or an order granted under
this section shall be retained for a period of not less than 10 years
from the date on which such directive or such order is made.
`(1) SEMIANNUAL ASSESSMENT- Not less frequently than once every 6
months, the Attorney General and Director of National Intelligence
shall assess compliance with the targeting and minimization procedures
required by subsections (e) and (f) and shall submit each such assessment
to--
`(A) the Foreign Intelligence Surveillance Court; and
`(B) the congressional intelligence committees.
`(2) AGENCY ASSESSMENT- The Inspectors General of the Department of
Justice and of any element of the intelligence community authorized
to acquire foreign intelligence information under subsection (a)--
`(A) are authorized to review the compliance of their agency or
element with the targeting and minimization procedures required
by subsections (e) and (f);
`(B) with respect to acquisitions authorized under subsection (a),
shall review the number of disseminated intelligence reports containing
a reference to a United States person identity and the number of
United States person identities subsequently disseminated by the
element concerned in response to requests for identities that were
not referred to by name or title in the original reporting;
`(C) with respect to acquisitions authorized under subsection (a),
shall review the number of targets that were later determined to
be located in the United States and the number of persons located
in the United States whose communications were reviewed; and
`(D) shall provide each such review to--
`(i) the Attorney General;
`(ii) the Director of National Intelligence; and
`(iii) the congressional intelligence committees.
`(A) REQUIREMENT TO CONDUCT- The head of an element of the intelligence
community conducting an acquisition authorized under subsection
(a) shall direct the element to conduct an annual review to determine
whether there is reason to believe that foreign intelligence information
has been or will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized under
subsection (a)--
`(i) an accounting of the number of disseminated intelligence
reports containing a reference to a United States person identity;
`(ii) an accounting of the number of United States person identities
subsequently disseminated by that element in response to requests
for identities that were not referred to by name or title in the
original reporting; and
`(iii) the number of targets that were later determined to be
located in the United States and the number of persons located
in the United States whose communications were reviewed.
`(B) USE OF REVIEW- The head of each element of the intelligence
community that conducts an annual review under subparagraph (A)
shall use each such review to evaluate the adequacy of the minimization
procedures utilized by such element or the application of the minimization
procedures to a particular acquisition authorized under subsection
(a).
`(C) PROVISION OF REVIEW TO FOREIGN INTELLIGENCE SURVEILLANCE COURT-
The head of each element of the intelligence community that conducts
an annual review under subparagraph (A) shall provide such review
to the Foreign Intelligence Surveillance Court.
`(4) REPORTS TO CONGRESS-
`(A) SEMIANNUAL REPORT- Not less frequently than once every 6 months,
the Attorney General shall fully inform, in a manner consistent
with national security, the congressional intelligence committees,
the Committee on the Judiciary of the Senate, and the Committee
on the Judiciary of the House of Representatives, concerning the
implementation of this Act.
`(B) CONTENT- Each report made under subparagraph (A) shall include--
`(i) any certifications made under subsection (g) during the reporting
period;
`(ii) any directives issued under subsection (h) during the reporting
period;
`(iii) the judicial review during the reporting period of any
such certifications and targeting and minimization procedures
utilized with respect to such acquisition, including a copy of
any order or pleading in connection with such review that contains
a significant legal interpretation of the provisions of this Act;
`(iv) any actions taken to challenge or enforce a directive under
paragraph (4) or (5) of subsection (h);
`(v) any compliance reviews conducted by the Department of Justice
or the Office of the Director of National Intelligence of acquisitions
authorized under subsection (a);
`(vi) a description of any incidents of noncompliance with a directive
issued by the Attorney General and the Director of National Intelligence
under subsection (h), including--
`(I) incidents of noncompliance by an element of the intelligence
community with procedures adopted pursuant to subsections (e)
and (f); and
`(II) incidents of noncompliance by a specified person to whom
the Attorney General and Director of National Intelligence issued
a directive under subsection (h);
`(vii) any procedures implementing this section; and
`(viii) any annual review conducted pursuant to paragraph (3).
`SEC. 704. USE OF INFORMATION ACQUIRED UNDER SECTION 703.
`Information acquired from an acquisition conducted under section 703
shall be deemed to be information acquired from an electronic surveillance
pursuant to title I for purposes of section 106, except for the purposes
of subsection (j) of such section.'.
(b) Table of Contents- The table of contents in the first section of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
`TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
`Sec. 701. Limitation on definition of electronic surveillance.
`Sec. 703. Procedures for acquiring the communications of certain
persons outside the United States.
`Sec. 704. Use of information acquired under section 703.'.
(1) IN GENERAL- Except as provided in paragraph (2), the amendments
made by subsections (a)(2) and (b) shall cease to have effect on December
31, 2013.
(2) CONTINUING APPLICABILITY- Section 703(h)(3) of the Foreign Intelligence
Surveillance Act of 1978 (as amended by subsection (a)) shall remain
in effect with respect to any directive issued pursuant to section
703(h) of that Act (as so amended) during the period such directive
was in effect. The use of information acquired by an acquisition conducted
under section 703 of that Act (as so amended) shall continue to be
governed by the provisions of section 704 of that Act (as so amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE
AND INTERCEPTION OF DOMESTIC COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means- Title I of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding
at the end the following new section:
`STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF DOMESTIC COMMUNICATIONS MAY BE CONDUCTED
`Sec. 112. Chapters 119 and 121 of title 18, United States Code, and
this Act shall be the exclusive means by which electronic surveillance
(as defined in section 101(f), regardless of the limitation of section
701) and the interception of domestic wire, oral, or electronic communications
may be conducted.'.
(b) Table of Contents- The table of contents in the first section of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding after the item relating to section 111, the
following:
`Sec. 112. Statement of exclusive means by which electronic surveillance
and interception of domestic communications may be conducted.'.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of Attorney General-
Subsection (a)(5) of section 601 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1871) is amended by striking `(not including
orders)' and inserting `, orders,'.
(b) Reports by Attorney General on Certain Other Orders- Such section
601 is further amended by adding at the end the following new subsection:
`(c) The Attorney General shall submit to the committees of Congress
referred to in subsection (a) a copy of any decision, order, or opinion
issued by the court established under section 103(a) or the court of
review established under section 103(b) that includes significant construction
or interpretation of any provision of this Act not later than 45 days
after such decision, order, or opinion is issued.'.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1804) is amended--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as paragraphs (2)
through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B) of this
paragraph, by striking `detailed';
(D) in paragraph (6), as redesignated by subparagraph (B) of this
paragraph, in the matter preceding subparagraph (A)--
(i) by striking `Affairs or' and inserting `Affairs,'; and
(ii) by striking `Senate--' and inserting `Senate, or the Deputy
Director of the Federal Bureau of Investigation, if designated
by the President as a certifying official--';
(E) in paragraph (7), as redesignated by subparagraph (B) of this
paragraph, by striking `statement of' and inserting `summary statement
of';
(F) in paragraph (8), as redesignated by subparagraph (B) of this
paragraph, by adding `and' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B) of this
paragraph, by striking `; and' and inserting a period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as subsections (b)
through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated by paragraph
(3) of this subsection, by striking `or the Director of National Intelligence'
and inserting `the Director of National Intelligence, or the Director
of the Central Intelligence Agency'.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805) is amended--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as paragraphs (1)
through (4), respectively;
(2) in subsection (b), by striking `(a)(3)' and inserting `(a)(2)';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding `and' at the end;
(B) in subparagraph (E), by striking `; and' and inserting a period;
and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as subsections (d)
through (h), respectively;
(6) by amending subsection (e), as redesignated by paragraph (5) of
this section, to read as follows:
`(e)(1) Notwithstanding any other provision of this title, the Attorney
General may authorize the emergency employment of electronic surveillance
if the Attorney General--
`(A) determines that 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;
`(B) determines that the factual basis for issuance of an order under
this title to approve such electronic surveillance exists;
`(C) informs, either personally or through a designee, a judge having
jurisdiction under section 103 at the time of such authorization that
the decision has been made to employ emergency electronic surveillance;
and
`(D) makes an application in accordance with this title to a judge
having jurisdiction under section 103 as soon as practicable, but
not later than 168 hours after the Attorney General authorizes such
surveillance.
`(2) If the Attorney General authorizes the emergency employment of
electronic surveillance under paragraph (1), the Attorney General shall
require that the minimization procedures required by this title for
the issuance of a judicial order be followed.
`(3) In the absence of a judicial order approving such electronic surveillance,
the surveillance shall terminate when the information sought is obtained,
when the application for the order is denied, or after the expiration
of 168 hours from the time of authorization by the Attorney General,
whichever is earliest.
`(4) A denial of the application made under this subsection may be reviewed
as provided in section 103.
`(5) In the event that such application for approval is denied, or in
any other case where the electronic surveillance is terminated and no
order is issued approving the surveillance, no information obtained
or evidence derived from such surveillance shall be received in evidence
or otherwise disclosed in any trial, hearing, or other proceeding in
or before any court, grand jury, department, office, agency, regulatory
body, legislative committee, or other authority of the United States,
a State, or political subdivision thereof, and no information concerning
any United States person acquired from such surveillance shall subsequently
be used or disclosed in any other manner by Federal officers or employees
without the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death or serious
bodily harm to any person.
`(6) The Attorney General shall assess compliance with the requirements
of paragraph (5).'; and
(7) by adding at the end the following:
`(i) In any case in which the Government makes an application to a judge
under this title to conduct electronic surveillance involving communications
and the judge grants such application, upon the request of the applicant,
the judge shall also authorize the installation and use of pen registers
and trap and trace devices, and direct the disclosure of the information
set forth in section 402(d)(2).'.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence Surveillance
Act of 1978 (8 U.S.C. 1806) is amended by striking `radio communication'
and inserting `communication'.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications- Section 303 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1823) is amended--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as paragraphs (2)
through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B) of this
paragraph, by striking `detailed';
(D) in paragraph (3)(C), as redesignated by subparagraph (B) of
this paragraph, by inserting `or is about to be' before `owned';
and
(E) in paragraph (6), as redesignated by subparagraph (B) of this
paragraph, in the matter preceding subparagraph (A)--
(i) by striking `Affairs or' and inserting `Affairs,'; and
(ii) by striking `Senate--' and inserting `Senate, or the Deputy
Director of the Federal Bureau of Investigation, if designated
by the President as a certifying official--'; and
(2) in subsection (d)(1)(A), by striking `or the Director of National
Intelligence' and inserting `the Director of National Intelligence,
or the Director of the Central Intelligence Agency'.
(b) Orders- Section 304 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1824) is amended--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as paragraphs (1)
through (4), respectively; and
(2) by amending subsection (e) to read as follows:
`(e)(1) Notwithstanding any other provision of this title, the Attorney
General may authorize the emergency employment of a physical search
if the Attorney General--
`(A) determines that an emergency situation exists with respect to
the employment of a physical search to obtain foreign intelligence
information before an order authorizing such physical search can with
due diligence be obtained;
`(B) determines that the factual basis for issuance of an order under
this title to approve such physical search exists;
`(C) informs, either personally or through a designee, a judge of
the Foreign Intelligence Surveillance Court at the time of such authorization
that the decision has been made to employ an emergency physical search;
and
`(D) makes an application in accordance with this title to a judge
of the Foreign Intelligence Surveillance Court as soon as practicable,
but not more than 168 hours after the Attorney General authorizes
such physical search.
`(2) If the Attorney General authorizes the emergency employment of
a physical search under paragraph (1), the Attorney General shall require
that the minimization procedures required by this title for the issuance
of a judicial order be followed.
`(3) In the absence of a judicial order approving such physical search,
the physical search shall terminate when the information sought is obtained,
when the application for the order is denied, or after the expiration
of 168 hours from the time of authorization by the Attorney General,
whichever is earliest.
`(4) A denial of the application made under this subsection may be reviewed
as provided in section 103.
`(5)(A) In the event that such application for approval is denied, or
in any other case where the physical search is terminated and no order
is issued approving the physical search, no information obtained or
evidence derived from such physical search shall be received in evidence
or otherwise disclosed in any trial, hearing, or other proceeding in
or before any court, grand jury, department, office, agency, regulatory
body, legislative committee, or other authority of the United States,
a State, or political subdivision thereof, and no information concerning
any United States person acquired from such physical search shall subsequently
be used or disclosed in any other manner by Federal officers or employees
without the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death or serious
bodily harm to any person.
`(B) The Attorney General shall assess compliance with the requirements
of subparagraph (A).'.
(c) Conforming Amendments- The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) in section 304(a)(4), as redesignated by subsection (b) of this
section, by striking `303(a)(7)(E)' and inserting `303(a)(6)(E)';
and
(2) in section 305(k)(2), by striking `303(a)(7)' and inserting `303(a)(6)'.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND TRACE
DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking `48 hours' and inserting `168
hours'; and
(2) in subsection (c)(1)(C), by striking `48 hours' and inserting
`168 hours'.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges- Subsection (a) of section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by
inserting `at least' before `seven of the United States judicial circuits'.
(1) IN GENERAL- Subsection (a) of section 103 of the Foreign Intelligence
Surveillance Act of 1978, as amended by subsection (a) of this section,
is further amended--
(A) by inserting `(1)' after `(a)'; and
(B) by adding at the end the following new paragraph:
`(2)(A) The court established under this subsection may, on its own
initiative, or upon the request of the Government in any proceeding
or a party under section 501(f) or paragraph (4) or (5) of section 703(h),
hold a hearing or rehearing, en banc, when ordered by a majority of
the judges that constitute such court upon a determination that--
`(i) en banc consideration is necessary to secure or maintain uniformity
of the court's decisions; or
`(ii) the proceeding involves a question of exceptional importance.
`(B) Any authority granted by this Act to a judge of the court established
under this subsection may be exercised by the court en banc. When exercising
such authority, the court en banc shall comply with any requirements
of this Act on the exercise of such authority.
`(C) For purposes of this paragraph, the court en banc shall consist
of all judges who constitute the court established under this subsection.'.
(2) CONFORMING AMENDMENTS- The Foreign Intelligence Surveillance Act
of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this subsection,
by inserting `(except when sitting en banc under paragraph (2))'
after `no judge designated under this subsection'; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting `(except
when sitting en banc)' after `except that no judge'.
(c) Stay or Modification During an Appeal- Section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new subsection:
`(f)(1) A judge of the court established under subsection (a), the court
established under subsection (b) or a judge of that court, or the Supreme
Court of the United States or a justice of that court, may, in accordance
with the rules of their respective courts, enter a stay of an order
or an order modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered under any
title of this Act, while the court established under subsection (a)
conducts a rehearing, while an appeal is pending to the court established
under subsection (b), or while a petition of certiorari is pending in
the Supreme Court of the United States, or during the pendency of any
review by that court.
`(2) The authority described in paragraph (1) shall apply to an order
entered under any provision of this Act.'.
SEC. 110. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking `105B(h) or 501(f)(1)' and inserting
`501(f)(1) or 703'; and
(2) in paragraph (2), by striking `105B(h) or 501(f)(1)' and inserting
`501(f)(1) or 703'.
TITLE II--OTHER PROVISIONS
SEC. 201. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or the
application thereof to any person or circumstances is held invalid,
the validity of the remainder of the Act, any such amendments, and of
the application of such provisions to other persons and circumstances
shall not be affected thereby.
SEC. 202. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General- Except as provided in subsection (c), the amendments
made by this Act shall take effect on the date of the enactment of this
Act.
(1) IN GENERAL- Except as provided in subsection (c), sections 105A,
105B, and 105C of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1805a, 1805b, and 1805c) are repealed.
(2) TABLE OF CONTENTS- The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended by striking the items relating to sections 105A,
105B, and 105C.
(c) Transitions Procedures-
(1) PROTECTION FROM LIABILITY- Notwithstanding subsection (b)(1),
subsection (l) of section 105B of the Foreign Intelligence Surveillance
Act of 1978 shall remain in effect with respect to any directives
issued pursuant to such section 105B for information, facilities,
or assistance provided during the period such directive was or is
in effect.
(A) ORDERS IN EFFECT ON DATE OF ENACTMENT- Notwithstanding any other
provision of this Act or of the Foreign Intelligence Surveillance
Act of 1978--
(i) any order in effect on the date of enactment of this Act issued
pursuant to the Foreign Intelligence Surveillance Act of 1978
or section 6(b) of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 556) shall remain in effect until the date of
expiration of such order; and
(ii) at the request of the applicant, the court established under
section 103(a) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803(a)) shall reauthorize such order if the facts
and circumstances continue to justify issuance of such order under
the provisions of such Act, as in effect on the day before the
date of the enactment of the Protect America Act of 2007, except
as amended by sections 102, 103, 104, 105, 106, 107, 108, and
109 of this Act.
(B) ORDERS IN EFFECT ON DECEMBER 31, 2013- Any order issued under
title VII of the Foreign Intelligence Surveillance Act of 1978,
as amended by section 101 of this Act, in effect on December 31,
2013, shall continue in effect until the date of the expiration
of such order. Any such order shall be governed by the applicable
provisions of the Foreign Intelligence Surveillance Act of 1978,
as so amended.
(3) AUTHORIZATIONS AND DIRECTIVES IN EFFECT-
(A) AUTHORIZATIONS AND DIRECTIVES IN EFFECT ON DATE OF ENACTMENT-
Notwithstanding any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978, any authorization or directive
in effect on the date of the enactment of this Act issued pursuant
to the Protect America Act of 2007, or any amendment made by that
Act, shall remain in effect until the date of expiration of such
authorization or directive. Any such authorization or directive
shall be governed by the applicable provisions of the Protect America
Act of 2007 (Public Law 110-55; 121 Stat. 552), and the amendment
made by that Act, and, except as provided in paragraph (4) of this
subsection, any acquisition pursuant to such authorization or directive
shall be deemed not to constitute 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)), as construed in accordance with
section 105A of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1805a)).
(B) AUTHORIZATIONS AND DIRECTIVES IN EFFECT ON DECEMBER 31, 2013-
Any authorization or directive issued under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by section 101
of this Act, in effect on December 31, 2013, shall continue in effect
until the date of the expiration of such authorization or directive.
Any such authorization or directive shall be governed by the applicable
provisions of the Foreign Intelligence Surveillance Act of 1978,
as so amended, and, except as provided in section 704 of the Foreign
Intelligence Surveillance Act of 1978, as so amended, any acquisition
pursuant to such authorization or directive shall be deemed not
to constitute electronic surveillance (as that term is defined in
section 101(f) of the Foreign Intelligence Surveillance Act of 1978,
to the extent that such section 101(f) is limited by section 701
of the Foreign Intelligence Surveillance Act of 1978, as so amended).
(4) USE OF INFORMATION ACQUIRED UNDER PROTECT AMERICA ACT- Information
acquired from an acquisition conducted under the Protect America Act
of 2007 (Public Law 110-55; 121 Stat. 552), and the amendments made
by that Act, shall be deemed to be information acquired from an electronic
surveillance pursuant to title I of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of
that Act (50 U.S.C. 1806), except for purposes of subsection (j) of
such section.
(5) NEW ORDERS- Notwithstanding any other provision of this Act or
of the Foreign Intelligence Surveillance Act of 1978--
(A) the government may file an application for an order under the
Foreign Intelligence Surveillance Act of 1978, as in effect on the
day before the date of the enactment of the Protect America Act
of 2007, except as amended by sections 102, 103, 104, 105, 106,
107, 108, and 109 of this Act; and
(B) the court established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 shall enter an order granting such an application
if the application meets the requirements of such Act, as in effect
on the day before the date of the enactment of the Protect America
Act of 2007, except as amended by sections 102, 103, 104, 105, 106,
107, 108, and 109 of this Act.
(6) EXTANT AUTHORIZATIONS- At the request of the applicant, the court
established under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 shall extinguish any extant authorization to conduct electronic
surveillance or physical search entered pursuant to such Act.
(7) APPLICABLE PROVISIONS- Any surveillance conducted pursuant to
an order entered pursuant to this subsection shall be subject to the
provisions of the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the date of the enactment of the Protect
America Act of 2007, except as amended by sections 102, 103, 104,
105, 106, 107, 108, and 109 of this Act.
Calendar No. 529
110th CONGRESS
1st Session
S. 2440
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978, to modernize
and streamline the provisions of that Act, and for other purposes.
December 11, 2007
Read the second time and placed on the calendar
END
